IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140009105 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.  

2.  He states he believes his discharge to be inequitable because it was based on unjust verbal claims made on his monthly counseling forms which played a major factor in the outcome of enlistment that led to summary court-martial proceedings.  They were isolated incidents in 23 months of service without any prior records of major misconduct.  

3.  He provides a self-authored statement and two DA Forms 4856 (General Counseling Form).  

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.  The applicant's service record shows he was born on 17 December 1973, and enlisted in the Regular Army on 1 March 1994 at the age of 20.  He completed initial entry training and was awarded military occupational specialty (MOS) 67S (Helicopter Repairer).  

3.  He provided two counseling statements dated 24 January 1995 which indicate he failed to follow directives and personal performance.  His service record shows he received adverse counseling statements in September and October 1995 for failing to obey an order or regulation, being absent without authority, and missing movement.  

4.  On 16 October 1995, he was convicted by a summary court-martial of missing movement of his assigned unit and for failing to obey a noncommissioned officer (NCO).  He was sentenced to be reduced to private/E-1, forfeiture of $569 pay for one month, restriction to the limits of the barracks, dining facility, chapel, and place of duty for a period of 45 days, and to perform hard labor without confinement for a period of 45 days.  

5.  On 4 January 1996, the applicant's unit commander notified the applicant of his intent to recommend discharge under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The unit commander stated the reasons for his proposed action as missing the movement of the applicant's assigned unit.  The applicant was advised of his rights.  On the same date, he acknowledged notification of the separation action.  

6.  He consulted with legal counsel and was advised of the basis for the contemplated action to separate him for misconduct under Army Regulation 635-200, paragraph 14-12c and its effects.  He did not submit statements in his own behalf.

7.  The separation authority approved the separation action and directed issuance of a general discharge.  

8.  On 29 January 1996, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  He completed 1 year, 10 months, and 29 days active military service.  

9.  He provided a self-authored statement which he stated:

	a.  he was born in Zeist, Netherlands, grew up in Pensacola, FL, Naval Air station, Keflavik Iceland, and later Langley Air Force Base, VA.  He enlisted in the U.S. Army on 3 March 1994 and his MOS was designated as 67S (Helicopter Crew Chief) in Company D, 1st Battalion, 82nd Aviation Brigade, Fort Bragg, NC.

	b.  he was young and inexperienced in life, but he served in a proud, loyal, honorable, and professional manner.  His first year was exciting.  He attended advanced individual training at Fort Eustis, VA, Jump School at Fort Benning, GA, all without incident before he was permanently assigned to 1st Battalion, 82nd Aviation Brigade, Fort Bragg, NC.

	c.  he had personality conflicts with his platoon sergeant and was discriminated against at his next duty station.  He received negative monthly counseling forms until he was discharged.  His verbal counseling was not reflected on his counseling forms.

	d.  his company commander was unresponsive to his concerns.  He was not working on helicopters anymore and was tasked with other duties of less significance and value.  He received poor and negative evaluations which eventually manifested themselves to the point of discharge proceedings.

	e.  he blamed his platoon sergeant and personal agenda against him for the reason he didn't have a long career in the U.S. Army.  If he had been properly counseled or reassigned and conflicts resolved, the outcome may have been different.  

	f.  since his discharge he has attended a vocational technical school in the trade of commercial and he obtained a job as a commercial diver with an underwater construction company in Virginia.  Many of the jobs included consultant work for the Armed services.

	g.  he has been married for almost 10 years and has a son.  In 2001, he signed up for the National Bridge Inspection Standards Federal training program.  He accepted a job as an underwater bridge inspector in 2003 and has worked this job for almost 12 years.  He is a law abiding citizen with a clean record.  In his spare time he would like to road cycle and fly airplanes.  

10.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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 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.  An under other than honorable conditions (UOTHC) discharge 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.  

12.  Army regulation 635-200, paragraph 3-7a states 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The applicant contends that his discharge is inequitable because it was based on unjust verbal claims made on his monthly counseling forms which played a major factor in the outcome of enlistment that led to summary court-martial proceedings.  However, his service record is void of evidence and he has not provided any evidence which supports his claims.

3.  The applicant's service record shows he received negative counseling statements and was convicted by a summary court-martial for missing movement of his assigned unit and for failing to obey a NCO.  

4.  The applicant contends he was young and inexperienced in life.  Records show the applicant was 21 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  

5.  The applicant's service record is void of evidence which supports his contentions regarding his conflicts with his platoon sergeant.  There is no evidence in the available records to demonstrate that the applicant was the victim of discrimination.  


6.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.

7.  Although a UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, it appears the separation authority determined the applicant's overall service met the standards of acceptable conduct and performance of duty to warrant a general discharge.  

8.  The applicant's service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his general 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)                                         AR20140009105





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ABCMR Record of Proceedings (cont)                                         AR20140009105



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