IN THE CASE OF:  	  

		BOARD DATE:  9 December 2014	  

		DOCKET NUMBER:  AR20140006794 


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 reconsideration of the Board's denial of his previous request that his general discharge be upgraded to honorable.  

2.  The applicant states that with respect to the allegations brought against him, he was misled, misguided, and not properly represented and at no time were his words heard.  The "communicating a threat" offense involving his supposed actions toward a superior noncommissioned officer (NCO) was an "untold truth."  In fact, they were at a club and he and the NCO always stayed in arguments so the NCO used his rank to overpower him and also to make up the story of him striking another Soldier by shoving and knocking that Soldier to the ground.  An altercation was started between a group of Soldiers in which he had no involvement at all, but his NCO brought up his name, which was a golden opportunity for the NCO.  Over 200 people were outside the enlisted club drinking, being loud and fighting but no one out of all those people saw him push the other Soldier except this one NCO who worked at the club.  In the case brought against him, he brought the Soldier that he allegedly knocked to the ground to his company commander with written statements confirming it wasn't him.  Several NCOs said it was not him, but no one came to his defense, which may have been because they feared encountering problems if they did so.  His commander didn't want to acknowledge the Soldier's story; therefore, it must have been personal and thus unfair and prejudiced.  He was never given an opportunity to explain his situation, which he feels was an injustice.  His commander had it in for him.  He was young and not understanding and had no chance, so even when he was right he was wrong.

3.  Regarding another situation (taken to be a drunk on duty charge), he states that drinking until 3:30 a.m. with the same NCO and then being required to go to the military police station to be given a breath test was a pure set up.  Though he waived counsel, things were going so fast that he was not "there" in a mental state.  He contacted the Army Discharge Review Board (ADRB) in 1991, 1992, 1993, and 1994 to no avail.  He did not get a response.

4.  The applicant provides two personal statements.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130013447, on 18 March 2014.

2.  The applicant's contention that he did not strike or push another Soldier causing him to fall to the ground or communicate a threat to a superior NCO is a new argument that requires the Board reconsider his request.

3.  On 28 August 1989, at the age of 26 and after two prior periods of service in the Army National Guard, he enlisted in the Regular Army for 4 years.  The highest rank he held was private first class/pay grade E-3.

4.  On 17 April 1990, he was counseled for disobeying an order to report to work at the time prescribed, failing to report to work, and missing movement on         14 May 1990.

5.  On 11 May 1990, he was notified in writing that his pass privileges were revoked and he was not to enter any of the clubs on Fort Irwin or any other establishments serving alcoholic beverages.  He acknowledged receipt of the revocation.  

6.  On 8 June 1990, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* unlawfully striking another Soldier by shoving and knocking him to the ground
* two specifications of disobeying a lawful order from his superior commissioned officer
* communicating a threat to a superior NCO
* failing to go at the time prescribed to his appointed place of duty
* being drunk on duty

7.  On 1 August 1990, he was advised by his unit commander that action was being initiated to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph  14-12b, by reason of a definite pattern of misconduct.  As the specific reasons for the proposed separation action, his commander cited the applicant's misconduct that led to his NJP on 8 June 1990 and the fact that he had been counseled on numerous occasions as to the importance of reporting to work on time and his attitude toward his superiors.  He was advised that he could receive an under other than honorable conditions discharge, which is what his commander stated he was recommending he receive.  He was further advised that he could take an attached statement of rights to the Trial Defense Service Office and consult with legal counsel concerning this action.  The attached statement of his rights, which he acknowledged receiving on 2 August 1990, stated he had the right to:

* consult with legal counsel 
* submit a request for a hearing before an administrative separation board if he had 6 or more years of active and reserve service at the time of separation 
* submit statements in his own behalf

8.  On 2 August 1990, his commander recommended he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b.  The reason he gave for the recommended action was the applicant's conduct, which was prejudicial to the good order and discipline of the armed forces, including conduct violating the accepted standard of good conduct found in the UCMJ.  He recommended the applicant be given an under other than honorable conditions discharge.

9.  On 2 August 1990, the applicant consulted with counsel, who advised him of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He elected not to submit a statement in his own behalf. 

10.  On 2 August 1990, the appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 14 and directed the issuance of a General Discharge Certificate.

11.  Accordingly, on 9 August 1990, he was discharged from the Army with a general discharge due to misconduct after completing 11 months and 12 days of active service and 5 years, 5 months, and 27 days of inactive service and 6 months and 3 days of prior active service. 

12.  There is no indication he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included acts or patterns of misconduct.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	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 meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization is clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions, including his age at time of enlistment, were noted.  However, the available evidence does not support his request for an upgrade of the character of his service.  

2.  He enlisted in the Regular Army at the age of 26 with over 5 years of prior service.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

3.  He was counseled for disobeying an order to report to work at the time prescribed and for failure to report to work and for missing movement.  He received NJP for unlawfully striking another Soldier, two specifications of disobeying a lawful order from his superior commissioned officer, communicating a threat to a superior NCO, failing to go at the time prescribed to his appointed place of duty, and for being drunk on duty.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The evidence shows that though his commander recommended he be given an under other than honorable conditions discharge, he waived a hearing before an administrative board (where he could have voiced his current concerns) under the condition that he would not be given worse than a general discharge, which he ultimately received.

5.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

6.  In view of the foregoing, there is no basis for granting the applicant's request for upgrade of his 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 to amend the decision of the ABCMR set forth in Docket Number AR20130013447, dated 18 March 2014.




      _______ _   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)                                         AR20140006794



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ABCMR Record of Proceedings (cont)                                         AR20140006794



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