IN THE CASE OF:	   

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140006542 


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 discharge under honorable conditions (general) be upgraded to honorable.

2.  He states he was very young and did not have the proper discipline or training to help him understand the Army.

3.  He provides Congressional correspondence and a Bachelor of Arts (BA) certificate.

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.  After having prior service in the Army National Guard, on 16 August 1985, the applicant enlisted in the Regular Army.  He was 20 years of age at the time of his enlistment.

3.  His record shows that between 2 July 1986 and 8 April 1987 he received eight negative counseling statements.  The counseling statements were for the following infractions:

* Failure to be at his appointment
* Being disrespectful to a noncommissioned officer (NCO)
* Displaying a bad attitude on several occasions
* Circumventing the chain of command
* Making a derogatory statement concerning a superior officer
* Writing bad checks
* Failure to inform his squad leader of his whereabouts 
* Having an unsecure wall locker

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 15 August 1986 for being disrespectful to an NCO and disobeying a lawful order from an NCO and the first sergeant on 22 July 1986 
* 16 April 1987 for being derelict in his duties on 7 April 1987

5.  On 11 May 1987, the applicant requested that the unit commander transfer him to another company within the battalion.  He stated he wanted a fair investigation of his situation and to be transferred to another unit in the battalion on a probationary period so he could show his ability as a Soldier.

6.  On 14 May 1987, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, continual patterns of misconduct and conduct prejudicial to good order and discipline.   

7.  On 14 May 1987, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, the applicant requested consideration of his case by an administrative separation board, personal appearance before an administrative separation board, and to consult with and be represented by counsel.  


8.  On 14 July 1987, after receiving recommendations from the applicant's chain of command that the requirements for rehabilitation be waived and the applicant be issued a discharge characterized as under other than honorable conditions, the separation authority directed an elimination board be convened.

9.  On 7 August 1987, the applicant appeared before an administrative separation board.  The board carefully considered the evidence concerning the applicant and recommended that he receive a general discharge, that his discharge be suspended for a period of 6 months upon successful completion of the Military Instruction Course (MIC), that he be assigned to a different unit upon the completion of MIC, and that the Division G1/Adjutant General be commissioned to investigate and follow up on all actions required to correct his military file concerning his rank.

10.  On 8 October 1987, the unit commander recommended the suspension of the discharge be vacated and the issuance of a general discharge.  He said the applicant's attempt to complete an Army Physical Fitness Test on 9 September 1987 clearly violated his medical profile and he disobeyed orders from his doctor.  Additionally, on 28 September 1987, he disobeyed orders from the doctor by taking a bath after surgery thus causing a risk of a possible infection.  Lastly, on 29 September 1987, the chief nurse called the unit requesting an escort for the applicant to ensure he cleared the hospital without further incident.

11.  On 28 October 1987, the board's recommendation was approved in part.  The recommendation regarding attendance at the MIC, suspension of discharge, reassignment, and investigation concerning the applicant's rank were considered and disapproved.  The separation authority directed immediate discharge and the issuance of a general discharge.

12.  On 12 November 1987, the Defense Counsel recommended reconsideration of the discharge.  He cited the defense discovery of certain post-board allegations against the applicant as the basis for his request. 

13.  On 12 November 1987, the Staff Judge Advocate (SJA) reviewed the request for reconsideration and recommended immediate discharge.  The SJA stated that the applicant's record did not show sufficient potential for full effective duty as to warrant suspending his separation.

14.  On 13 November 1987, the applicant's request for reconsideration of his immediate discharge was denied. 


15.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 13 November 1987 under the provisions of Army Regulation 635-200, chapter 14-12b, misconduct -  pattern of misconduct with a characterization of service of general under honorable conditions.  He was credited with completing 2 years, 2 months, and 28 days of active service this period.

16.  On 3 August 1988, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 19 April 1989, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

17.  The applicant provided a copy of a Constituent Authorization Form that shows he requested assistance in getting his general discharge upgraded to honorable.  He stated he wants the upgrade so he can receive his G.I. Bill benefits from the money he paid into the program. 

18.  He also provide a certificate that shows he received a BA degree from the University of Pittsburgh on 19 December 1992.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  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 general discharge if such is merited by the Soldier's overall record.  

20.  Army Regulation 635-200, 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 maintains that his discharge should be upgraded because he was young and did not have the proper discipline or training to understand the Army.  The records show the applicant was 20 years of age at the time of his enlistment and 22 years of age at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  The fact that the applicant has graduated from the University of Pittsburgh with a BA degree was considered, however, good post-service conduct alone is not normally a basis for upgrading a discharge.  Likewise, the fact that he would like to receive his G.I. Bill benefits is also not justification for upgrading his discharge. He must provide evidence to prove the discharge was rendered unjustly, in error, or that there are mitigating circumstances which warrants the upgrade.

3.  The evidence shows he appeared before an administrative separation board that carefully considered all the evidence available and recommended that he receive a general discharge, that his discharge be suspended for a period of 
6 months upon successful completion the MIC, that he be assigned to a different unit upon the completion of MIC, and an investigation concerning his rank be conducted.  However, after further misconduct, on 28 October 1987 the separation authority approved the board's recommendation in part, and directed the applicant's immediate discharge with the issuance of a general discharge.  On 12 November 1987, the Defense Counsel recommended reconsideration of the applicant's discharge, but it was denied. 

4.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

5.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  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)                                         AR20140006542



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ABCMR Record of Proceedings (cont)                                         AR20140006542



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