IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140014326 


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 honorable.

2.  The applicant states, in effect, he was discharged because he was unable to do any heavy lifting.  The only basis for his discharge was three counseling statements, one of which replaced nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  He feels, after "beating" the Article 15, it was then reused to discharge him and he believes this to be double punishment.

3.  The applicant provides no additional documentary evidence.

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 enlisted in the Regular Army on 23 September 1986.  After completing initial training, he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade held was private first class/E-3.  Following initial training, his only assignment in the Army was to a unit located at Fort Bragg, NC.

3.  His records show he received NJP under the provisions of Article 15 of the UCMJ on 4 June 1987 for one specification of failing to obey a lawful order from his superior noncommissioned officer on 28 May 1987.

4.  Records also show, between May 1987 and September 1987, the applicant received six counseling statements for misconduct or performance issues.  His record is void of any reference to not being able to lift heavy weight.

* on 28 May 1987 for disobeying an order (this misconduct was also addressed by the NJP on 4 June 1987)
* on 31 May 1987 for failing to be prepared for a re-inspection and extra training
* on 3 June 1987, being advised he was being considered for administrative elimination under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation 635-200 (Personnel Separations – Enlisted Separations)
* on 29 June 1987 for dereliction of duty
* on 20 August 1987 for failing to be at his prescribed place of duty 
* on 15 September 1987 for failing to report to formation on time

5.  On 14 October 1987, the applicant's company commander notified the applicant of the proposed action to separate him under the provisions of Army Regulation 635-200, chapter 14 (Separation for Misconduct), paragraph 14-12b, for a pattern of misconduct consisting of failing to be at his appointed place of duty, dereliction of duty, poor performance, insubordination, failure to obey orders, and numerous negative counseling statements.  The company commander recommended a general discharge and advised the applicant of his rights.

6.  On 14 October 1987, the applicant acknowledged receipt of the proposed separation.  He stated:

* he desired to consult with counsel
* he did wish to submit statements in his own behalf (his records do not contain any statement he may have provided)

7.  On 29 October 1987, he consulted with counsel and indicated he had been advised of the basis for the contemplated separation action.  He also understood he was not entitled to have his case heard by an administrative board because he had less than 6 years of active and/or Reserve military service.  He further understood he could receive either an honorable or general discharge and, if he received a general discharge, he could encounter considerable prejudice in civilian life.  

8.  In an undated endorsement, the separation authority approved the unit commander's request for separation.  He directed the applicant be separated with a general under honorable conditions discharge under the provisions of paragraph 14-12b, Army Regulation 635-200.  On 3 December 1987, the applicant was discharged accordingly.

9.  His DD Form 214 shows he was discharged under honorable conditions (general) on 3 December 1987.  He completed 1 year, 2 months, and 11 days of net active creditable service.  He was awarded or authorized the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar 
(M-16), and the Expert Marksmanship Qualification Badge with Hand Grenade Bar. 

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

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

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

	b.  Paragraph 14-12b, in effect at the time, provided that members were subject to separation under this paragraph for a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  A discharge under other than honorable conditions was normally considered appropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded was carefully considered, but there was insufficient evidence to support his request.

2.  The applicant claims, in effect, his discharge action and the characterization of his service were unjust.  The evidence of record, however, confirms the applicant's separation was based upon a pattern of misconduct and processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Based upon his personal conduct, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Accordingly, there is no basis upon which to grant the applicant 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)                                         AR20140014326





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ABCMR Record of Proceedings (cont)                                         AR20140014326



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