IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140006029 


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 (GD) to an honorable discharge (HD).

2.  He states:

	a.  Shortly before being discharged, he reported Staff Sergeant (SSG) R to his commanding officer for threatening to kill as many people as he could during morning formation.  SSG R was arrested within an hour.  A rifle and box of ammunition were found in his possession, and he admitted guilt.  SSG R also admitted he was suicidal.  About a month later, SSG R was discharged from a psychiatric unit and returned to his position as his (applicant's) superior despite knowing who reported him.  

	b.  Upon his return, SSG R threatened he would ruin his (applicant's) career.  Within months, he was harassed and unfairly disciplined by SSG R.  SSG R's daily abuse of power drove him to the brink of suicide.  He (applicant) was demoted based on two incidents of misconduct.  He received one Article 15 for not getting a haircut and a second for being intoxicated on duty.  SSG R wrote both Article 15s and forced him to gargle with Listerine in his vehicle before bringing him to the military police station for a breathalyzer test.  

	c.  In the interest of putting this behind everyone, his commander offered him a GD.  He went along with the GD because he was a scared kid with no other alternative.  He would like reconsideration after all of these years due to the changes in technology providing access to military records.  His children and grandchildren may access his DD Form 214 (Certificate of Release or Discharge from Active Duty) and make assumptions about him that are not true.

3.  He provides his DD Form 214.  

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 24 April 1987, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  Effective 1 November 1988, he was promoted to specialist four (SP4)/E-4, which was the highest grade he held.

3.  On 19 April 1989, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from SSG R and being disrespectful in language toward SSG R.  His punishment was reduction to private first class/E-3 (suspended until 19 July 1989) and 4 days of extra duty.  He presented no matters in defense, mitigation, or extenuation, and he did not appeal.  

4.  On 10 July 1989, he received NJP for being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor or drugs and for failing to go at the time prescribed to his appointed place of duty.  His punishment was reduction to private 2 (PV2)/E-2, forfeiture of $182.00 pay (suspended until 8 October 1989), and 7 days of correctional custody.  He presented no matters in defense, mitigation, or extenuation, and he did not appeal.

5.  On 10 August 1989, his company commander responded to an inquiry from his mother.  The company commander stated the applicant was in the hospital for observation after taking an overdose of over-the-counter sleeping pills.  The company commander noted that the applicant had been found to have full awareness and responsibility for his actions and that the consensus among the chain of command and medical authorities was that he might be using manipulative behavior to avoid the consequences of his actions.  

6.  The company commander attached a list of incidents involving the applicant to his letter.  This list shows:

	a.  In March 1988, he turned himself in at the emergency room stating he had overdosed on lysergic acid diethylamide (LSD).  Approximately 1 month later, he told his superiors he hadn't taken anything, but wanted out of the Army.

	b.  In April 1988, he informed his chain of command he wanted a discharge.  After being informed he wouldn't get one, he smashed his stereo receiver.  He was also counseled for failing the Army Physical Fitness Test.

	c.  In April 1989, he received NJP for disobeying a lawful order and showing disrespect toward a superior noncommissioned officer.

	d.  In June 1989, the suspended portion of his NJP was revoked for being intoxicated on duty.

	e.  In July 1989, he –

* received NJP for being absent from his proper place of duty and being intoxicated on duty
* disobeyed a lawful order while awaiting assignment to the Correctional Custody Facility (CCF), but did obey the order after receiving in from the first sergeant
* refused to go to his proper place of duty

7.  A memorandum, subject:  Chapter 5 Counseling:  [Applicant], dated 11 August 1989, shows he was notified that Division Mental Health considered him a suicide threat and that he would have 24-hour supervision for the protection of himself and others.  Until his discharge, his place of duty was to be the battalion headquarters, where he was to work for the battalion command sergeant major until otherwise informed.  He was to serve 7 days of restriction and 7 days of extra duty in lieu of CCF.  He was also advised that he was to obey all lawful orders until his discharge and that failure to do so would result in punishment under the UCMJ.

8.  On 7 September 1989, the applicant's company commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, and that he was recommending issuance of a GD Certificate.  He cited the two instances of NJP as evidence of the pattern of misconduct that was the basis for the action, and he advised the applicant of his rights.

9.  On 7 September 1989, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  After consulting with counsel, he elected not to submit statements in his behalf.

10.  On 9 September 1989, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14.  He directed issuance of a GD Certificate. 

11.  On 22 September 1989, he was discharged in accordance with the separation authority's decision.  He completed 2 years, 4 months, and 29 days of net active service.

12.  The available records are void of documentation showing he reported SSG R to his commanding officer for threatening to kill people.

13.  There is no evidence indicating he submitted a request to the Army Discharge Review Board within its 15-year statute of limitations.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of regulation.

	b.  Paragraph 3-7a provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  Other than the applicant's statement, there is no evidence showing he was subjected to reprisal from SSG R because he had reported SSG R to his commanding officer for threatening to kill people.  In the absence of documentary evidence supporting this claim, it cannot be considered as a mitigating factor with regard to the characterization of his service.

2.  Regarding the NJP he received, the record shows he declined the opportunity to present matters in defense, mitigation, or extenuation, and he did not appeal. There is no evidence of error or injustice in the NJP he received.

3.  The record shows he was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.  The record supports the reason and authority for his discharge.

4.  Due to his pattern of misconduct, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Considering all the facts of this case, his GD was appropriate.  The available evidence is an insufficient basis upon which to grant the requested relief.

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)                                         AR20140006029





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ABCMR Record of Proceedings (cont)                                         AR20140006029



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