IN THE CASE OF:	   

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140006027 


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 under honorable conditions to an honorable discharge.

2.  The applicant states after 1 year of honorable living he would hope the Army would send him an honorable discharge.

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 29 July 1983, he enlisted in the Regular Army for 3 years.  He was assigned to the 6th Battalion, 29th Field Artillery (FA) in Strassburg, Germany from 1 April 1984 to 6 May 1985.
3.  On 12 June 1985, he was assigned to the 5th Battalion, 29th FA at Fort Carson, CO.

4.  On 16 October 1985, he accepted nonjudicial punishment (NJP) for wrongful use of marijuana from about 11 - 20 August 1985.

5.  On 26 February 1986, he was given a mental status evaluation by the division social worker.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

6.  On 21 March 1986, a Bar to Reenlistment Certificate was approved.  The bar to reenlistment was based on:

* his NJP on 16 October 1985
* his failure to pay just debts on seven occasions to Target
* counseling on disrespect to a non-commissioned officer (NCO)
* missing formation

7.  On 1 April 1986, his commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b, chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) because he had established a pattern of misconduct consisting of: 

* being absent from his appointed place of duty without authority
* wrongful using marijuana
* failing to pay just debts
* making and uttering worthless checks

8.  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 consideration of his case by a board of officers provided he had completed 6 years of total active and/or reserve military service or if the separation was to be approved by the general court-martial convening authority
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

9.  The commander recommended the elimination be approved by the special court-martial convening authority, and if approved, the applicant was not authorized consideration by a board of officers.

10.  On 2 April 1986 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:

* understood if he had less than 6 years of total active and/or reserve military service or if separation was to be accomplished by the special-martial convening authority he was not eligible for a personal appearance and consideration of his case by a board of officers
* would submit not statements in his own behalf
* could, up until the date the separation authority ordered, directed, or approved 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.  On 1 April 1986, his commander recommended his separation from the Army prior to the expiration of his term of service by reason of a pattern of misconduct.  The reasons for discharge were the applicant's:

* being absent from his appointed place of duty without authority
* wrongfully using marijuana
* failing to pay just debts
* making and uttering worthless checks

12.  On 2 April 1986, he received NJP for: 

* failing to go at the time prescribed to his appointed place of duty
* disobeying an order from an NCO
* being disrespectful in language toward an NCO

13.  On 8 April 1986, the appropriate authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200 and directed he be issued a General Discharge Certificate.
14.  On 15 April 1986, he was discharged.  He completed 2 years, 8 months, and 17 days of active service that was characterized as general, under honorable conditions.

15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 14 in effect at the time dealt with separation for various types of misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting a change in a discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  The applicant's service prior to his misconduct was clearly taken into consideration in that he received a general discharge where an under other honorable conditions discharge was normally considered appropriate.


3.  The quality of the member’s service after returning from Germany did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the above, there is no basis on which to upgrade his discharge 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)                                         AR20140006027



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ABCMR Record of Proceedings (cont)                                         AR20140006027



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