BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140003748 


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 his under other than honorable conditions discharge be upgraded to either an honorable or general discharge.

2.  The applicant states an altercation occurred with an off-duty military officer while he was on vacation during his military service.  He was told he was being court-martialed for the incident and was then presented the option of being dishonorably discharged or discharged under other than honorable conditions.  He accepted the under other than honorable conditions discharge without the benefit of counsel.

3.  The applicant provides no additional evidence in support of his application.

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.  On 16 January 1986, he enlisted in the Regular Army for 3 years.  He was assigned to Company A, 16th Engineer Battalion in Germany.

3.  He received nonjudicial punishment (NJP) on:

* 4 August 1986 for being absent without authority from his unit
* 3 October 1986 for destruction of private property and drunk and disorderly conduct 

4.  On 3 December 1986, a Bar to Reenlistment Certificate was approved based on his:

* previously receiving NJP on two occasions
* being counseled on two occasions for writing bad checks
* being absent from his appointed place of duty
* being drunk on duty
* suspension of check cashing privileges  

5.  He received NJP on:

* 10 December 1987 for operating a motor vehicle without a valid operator license
* 4 February 1988 for two specifications of failing to go at the time prescribed to his appointed place of duty 

6.  On 28 April 1988, he was tried before a summary court-martial.  

	a.  He pled guilty and was found guilty of:

 * assault by means likely to produce grievous bodily harm
 * two specifications of assault and battery 
 * being absent from duty
 * two specifications of violation of a general regulation

	b.  His sentence consisted of a forfeiture of $448 pay for 1 month and confinement for 1 month.  The sentence was approved by the convening authority on 13 May 1988.

7.  On 18 May 1988, he was assigned to the Special Processing Company (SPC), U.S. Army Personnel Control Facility (PCF), Fort Knox, KY.

8.  On 26 May 1988, the Commander, SPC, PCF notified the applicant he was initiating action to separate him under the provisions of paragraph 14-12b(2) of  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for a pattern of misconduct due to his conviction by summary court-martial and receiving NJP on four occasions.  The commander further notified the applicant he was recommending that he receive a general discharge.  However, the Commander, 2nd Armor Training Brigade, Fort Knox, would make the final decision in his case.

9.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* request a hearing before an administrative board if he would have 6 or more years of active and Reserve military service at the time of separation or if an under other than honorable conditions discharge has been recommended
* appear before an administrative separation board
* execute a conditional waiver of rights to an administrative separation board providing that the characterization of service proposed is general under honorable conditions or under other than honorable conditions
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

10.  On 26 May 1988, after consulting with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for a pattern of misconduct.  He stated he:

* waived consideration of his case by an administrative separation board
* waived a personal appearance before an administrative separation board
* would submit statements in his own behalf
* could, up until the date the separation authority orders, directs, or approves his separation, withdraw the waiver of any of the above rights and request that an administrative separation board hear his case
* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him

11.  Any statements he submitted in his own behalf were not available for review.

12.  On 26 May 1988, the Commander, SPC, PCF recommended the applicant be separated with a General Discharge Certificate prior to the expiration of his term of service (ETS) date under the provisions of paragraph 14-12b(2) Army Regulation 635-200.  The reason for this action was the applicant's conviction by a summery court-martial and the NJP that he received on four occasions.

13.  On 17 June 1988, the Commander, PCF, 2nd Armor Training Brigade, Fort Knox, KY recommended the applicant be discharged under the provisions of paragraph 14-12b(2) of Army Regulation 635-200 with a general discharge under honorable conditions.

14.  On 23 June 1988, the Acting Commander, 2nd Armor Training Brigade, Fort Knox, KY recommended the applicant be discharged under the provisions of paragraph 14-12c (serious offense), Army Regulation 635-200, with an under other than honorable conditions discharge.

15.  On 11 July 1988, the Commander, U.S. Army Armor Center, and Fort Knox, Fort Knox KY directed that the applicant be discharged under the provisions of paragraph 14-12c because of misconduct and that he receive an under other than honorable conditions discharge.

16.  On 18 August 1988, he was discharged.  He completed a total of 2 years, 
6 months, and 9 days of active service that was characterized as under other than honorable conditions.  He had 24 days of time lost due to being in confinement.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Paragraph 14-12b(2) provided for the separation of a Soldier due to a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline included conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army.

	b.  Paragraph 14-12c provided for separation of a Soldier due to the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.

	c.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	d.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	e.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he accepted his discharge due to an off- duty altercation and without the benefit of counsel.  However, he was discharged for numerous offenses.  In his statement, dated 26 May 1988, he indicated he had been advised by consulting counsel of the basis for his discharge and the effect of any action taken by him in waiving his rights.

2.  He received NJP on three occasions and was convicted by one summary court-martial.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The seriousness of the charges he was convicted of at his summary court-martial shows his service to be unsatisfactory.

3.  He was properly notified of the action to separate him prior to his ETS date.  He consulted with counsel prior to the election or waiver of his rights.  Therefore, there is no evidence of procedural or other errors that would have jeopardized his rights.  

4.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 14.  

5.  In view of the above, there is an insufficient basis to upgrade the characterization of his service to general or honorable.

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)                                         AR20140003748



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ABCMR Record of Proceedings (cont)                                         AR20140003748



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