BOARD DATE: 30 September 2014
DOCKET NUMBER: AR20140003297
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests an upgrade of his general discharge to honorable.
2. The applicant states he was 19, had knee problems while running, and was naive. He had a commanding officer who suggested he leave the military. The officer said, "I like Russ the person, I just don't like Russ the Soldier." He should have refused and switched bases. He regrets not switching bases and wishes he had stayed in and served his country like he wanted and should have.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 7 August 1986 at the age of 18 years, 8 months, and 6 days.
3. The record shows he received counseling for disobeying a lawful order and for failing to participate in mission essential training.
4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice in March 1987 for disobeying a lawful command by having alcoholic beverages in the barracks and in June 1987 for altering a public record by changing his temporary medical profile.
5. His unit commander subsequently initiated separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13.
6. The applicant acknowledged receipt and waived his rights to consult with legal counsel or to submit a statement in his own behalf.
7. The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and on 19 June 1987, the applicant was discharged accordingly. His DD Form 214 shows he completed 10 months and 13 days of creditable active military service with no time lost.
8. On 20 April 1989, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. An honorable or general discharge was considered appropriate.
b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions are noted; however, the available evidence shows his duty performance was tarnished by a history of negative counseling and instances of NJP. Accordingly, his chain of command initiated separation action against him.
2. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He provided no information that would indicate the contrary.
3. It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. The reason for discharge and the characterization of service were presumably both proper and equitable. Therefore, he is not entitled to an honorable discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X_____ __X______ __X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________X_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20140003297
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ABCMR Record of Proceedings (cont) AR20140003297
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