IN THE CASE OF:  	  

		BOARD DATE:  31 March 2015	  

		DOCKET NUMBER:  AR20140013784 


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 his previous application to have his discharge under other than honorable conditions upgraded to an honorable discharge.

2.  The applicant states that he is disappointed in the Board for not looking closer at his records.  His service record was clean until he was transferred to his last unit in 1986.  The first words to come out of his new commander's mouth were "No one in my company has a clean record."  He was charged with not being at his appointed place of duty when, in fact, he was with his trucks in the General's parade.  That was when he told his sergeant that they took this as a chance to tarnish his record.

3.  The applicant disputes the assault charge because it was based upon an event that occurred off base in his personal home and the pistol was not loaded.  The police were called and no charges were filed.  It was called self-defense by the police.  The applicant's commander also used this incident to tarnish his records more.

4.  The applicant contends that he was never told about counseling.  His discharge came about because he had orders that were going to assign him back to Germany and his commander told him to sign a letter of intent to reenlist or go home with only 10 months left to reenlist, and all of the commander's hostile language toward him made him to choose home.  This is the incident that led to the applicant's actions and words toward his commander.  Not once did the commander say anything about counseling or rehabilitation.
5.  The applicant further states that after he returned home, he tried to talk to his county Department of Veterans Affairs (VA) representative.  However the VA representative said that there was nothing that he could do.  The applicant filed paperwork for 8 years, restarted in 1996 and continued until 2013.  He strongly believes the VA office did not submit his paperwork so, he asked his county representative to help getting his paperwork and to get his discharge changed.  The dates and times of his records and his actions are so close together.  All the Board has are his words and his records and he has no reason to lie.  If the Board still decides not to upgrade his discharge, then he will put away all of his awards and hide the fact that he was ever in the U.S. Army.  He thanks the Board for their time and concludes that the commander and God both know what happened in October 1987.

6.  The applicant provides a one-page self-authored statement.

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 AR20130021027, on 17 July 2014.

2.  The applicant provides new argument that his charges of failure to be at his appointed place of duty and assault were unsubstantiated.  He also contends that he did not receive counseling prior to being discharged.  These arguments were not previously considered by the Board and, therefore, warrant reconsideration of his request for a discharge upgrade.

3.  The applicant enlisted in the Regular Army on 27 August 1982.  He served in Germany from 12 January 1983 to 5 July 1984.  He was reassigned to Fort Carson, CO and arrived at his unit on 16 August 1984.

4.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which shows he accepted NJP for violating Article 86, UCMJ by departing his appointed place of duty on 4 June 1986.  He did not demand trial by court-martial.  Although the specific facts and circumstances are not available it is evident that the applicant submitted an appeal to the Article 15.  Item 8 of this document shows the Article 15 proceedings and appeal were reviewed by a Judge Advocate officer and determined to have been conducted in accordance with law and regulations, and the punishments imposed were neither unjust nor disproportionate to the offense committed.  Item 9 of this document shows that after consideration of all matters presented in an appeal, the appeal was denied by the appropriate authority.
5.  On 8 March 1987, the applicant was promoted to the rank/grade of sergeant (SGT)/E-5. 

6.  The applicant's record contains a Fort Carson Form 20 (Positive Counseling), dated 22 September 1987, which shows he was counseled on his poor performance and pattern of misconduct which included:  missing formation, revocation of pass privileges, leaving his place of duty without authority, adultery, failing to obey a regulation, carrying a concealed weapon, and assault.  The applicant was advised that if he continued to behave in this manner he would be eliminated from the service under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, for misconduct.  He was further advised that he could receive an honorable, general or other than honorable type discharge if eliminated under this provision and that a less than honorable discharge could cause substantial prejudice in civilian life.

7.  The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate) which shows that on 23 September 1987 the applicant's unit commander notified him that he was initiating action to bar him from reenlistment based on his disciplinary record and his failure to respond to repeated counseling sessions.  The applicant was offered an opportunity to submit a statement in his own behalf but declined.  The bar to reenlistment was approved by the appropriate authority on 5 October 1987.

8.  On 25 September 1987, the applicant accepted NJP for violating Article 128, UCMJ by assaulting another Soldier with a loaded firearm and violating Article 134, UCMJ by unlawfully carrying a concealed weapon.

9.  An investigation was conducted into allegations against the applicant under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) from 26 August to 10 September 1987.  As a result, the investigating officer (IO) found that the applicant violated of Article 134, UCMJ by committing adultery and Article 92, UCMJ by failing to obey a regulation.

10.  The applicant's record contains a DA Form 4856 (General Counseling Form), dated on 30 September 1987, which shows he was counseled again on his poor performance and pattern of misconduct which included:  missing formation, revocation of pass privileges, leaving his place of duty without authority, adultery, failing to obey a regulation, carrying a concealed weapon, and assault.  The applicant was advised that if he continued to behave in this manner, he would be eliminated from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He was further advised that he could receive an honorable, general or other than honorable type discharge if eliminated under this provision and that a less than honorable discharge could cause substantial prejudice in civilian life.

11.  On 19 October 1987, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on commission of a serious offense.  He cited as the basis for his recommendation serious offenses including assault with a deadly weapon, adultery, carrying a concealed weapon, leaving his place of duty without authority, and failing to respond to repeated counseling and rehabilitation efforts.

12.  After consulting with defense counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

13.  On 23 October 1987, the Commanding General approved the recommendation for discharge and directed that he be reduced to the lowest enlister rank/grade and discharged under other than honorable conditions.

14.  On 30 October 1987, he was discharged accordingly, under the provisions of Army Regulation 635-200, paragraph 14-12c due to misconduct – commission of a serious offense.  His service was characterized as under other than honorable conditions.  He had completed a total of 5 years, 2 months, and 4 days of active service.

15.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

17.  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.
18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found to lack merit as they are not supported by the evidence of record or evidence submitted with his application.  Evidence clearly shows that he was provided counseling by his leadership on numerous occasions.  He was also afforded opportunities to consult with counsel each time he was subjected to NJP and during his separation process.  The fact that he accepted NJP without demanding trial by court-martial indicates that the charges imposed against him were substantiated.
Additionally, his appeal of his July 1986 Article 15 was denied, which further indicates that the charge was substantiated.  As a noncommissioned officer, the applicant was fully aware that his off-duty conduct was subject to the UCMJ.  Therefore, his contention that the incident involving assault with a deadly weapon occurred off post and should not have been subject to the UCMJ is unfounded.

2.  Evidence shows the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The fact that the applicant had a good record prior to his offenses is duly noted.  However, based on his many incidents of misconduct, the characterization of his service was appropriate for the circumstances of his case.

4.  In view of the foregoing there appears to be no basis for granting the applicant an honorable or a general 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 AR20130021027, dated 17 July 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)                                         AR20140013784





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ABCMR Record of Proceedings (cont)                                         AR20140013784



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