IN THE CASE OF:	  

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140010947 


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.

2.  The applicant states, in effect, he has been and continues to be a productive person.  He believes his court-martial was unjust and unfair because he had never been in trouble during his period of service.  He wants to prove to everyone that one mistake should not lead to a discharge.  He attended the Primary Leadership Development Course in 1985.  He has been attempting to correct this since 1986.

3.  The applicant provides a copy of his DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty).

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 21 September 1982, with prior U.S. Army Reserve enlisted service.  He was awarded military occupational specialty 19K (armor crewman).  He was promoted to pay grade E-4 on 1 January 1984.  He served in Germany from 18 July 1984 through 17 July 1986.

3.  On 7 August 1986, he was convicted by a summary court-martial of the following:

* violating a lawful general regulation by wrongfully operating a privately owned vehicle without being in possession of a valid U.S. Army Europe owned vehicle license – 2 specifications
* driving while drunk – 1 specification
* assaulting a person in the execution of law enforcement duties – 1 specification
* being disrespectful to his superior commissioned officer – 1 specification

4.  His sentence included a reduction to pay grade E-1, a forfeiture of $350.00 pay for 1 month, and confinement for 30 days.

5.  On 20 August 1986, the convening authority approved his sentence and ordered it executed.

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 29 August 1986, shows he was found to be mentally responsible and was cleared for any administrative action as deemed appropriate his command.

7.  On 1 September 1986, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-2c, for misconduct. 

8.  A DA Form 4856-R (General Counseling Form), dated 2 September 1986, shows the applicant received counseling for his performance misconduct and discharge action.  On the same day, the applicant's company commander initiated action to discharge the applicant for misconduct with a general discharge.  He advised the applicant of his rights.

9.  On 2 September 1986, after waiving his right to counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He elected not to submit a statement in his own behalf.    

10.  On 17 September 1986, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

11.  He was discharged accordingly in pay grade E-1 on 30 September 1986.  He was credited with completing 3 years, 11 months, and 18 days of active service.  

12.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

13.  On 24 January 1991, in response to his request, the U.S. Army Enlistment Eligibility Activity determined that the reenlistment (RE) codes RE-3, RE-3b, and RE-3c should be shown on his DD Form 214 and denied his request for an RE code change.  

14.  He provided a copy of the resulting DD Form 215, dated 1 February 1991, which listed the aforementioned RE codes.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  The regulation stated in:

   a.  Paragraph 14-12c - Soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge would be authorized for the same or a closely related offense under the uniform code of military justice.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

   b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, with a general discharge.  He acknowledged the proposed separation action and elected not to submit a statement in his own behalf.  The separation authority approved his discharge and he was discharged accordingly on 30 September 1986.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade.

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)                                         AR20140010947





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ABCMR Record of Proceedings (cont)                                         AR20140010947



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