IN THE CASE OF: 

		BOARD DATE: 28 April 2015

		DOCKET NUMBER:  AR20140016456 


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 to honorable.

2.  The applicant states his discharge was based on one incident while he was on active duty.

3.  The applicant did not provide any supporting documentation.

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 13 September 1978.  He held military occupational specialty 11B (Infantryman).  


3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Overseas Service) he served in Germany from 23 June 1980 through 10 September 1981 and from 27 May 1983 through 24 June 1985;

	b.  item 9 (Awards, Decorations, and Campaigns) he was awarded or authorized the Army Good Conduct Medal (2 Awards), Army Service Ribbon, and Overseas Service Ribbon; and

	c.  item 18 (Appointments and Reductions) the highest rank/grade he attained was specialist four/E-4.  He was reduced to private/E-2 effective 3 September 1986.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 3 September 1986, for being absent without leave (AWOL) from 29 to 31 August 1986.

5.  A CID Form 94 (Agent's Investigation Report), dated 8 October 1986, shows the applicant and another Soldier were involved in an argument, at which time the applicant struck the other Soldier in the head with a beer bottle, causing a laceration to his head.  The agent coordinated with the Staff Judge Advocate Office and an opinion was rendered that the applicant could be titled with aggravated assault.

6.  On 19 October 1986, the applicant's immediate commander notified him of his intent to initiate separation action for a pattern of misconduct.  He recommended the applicant receive a general discharge.

7.  The applicant acknowledged receipt of the separation notification action, consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and indicated he would not submit a statement on his own behalf.  

8.  The applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b, for a pattern of misconduct.  The commander indicated the applicant's performance of further duty would create serious disciplinary problems. 

9.  The applicant's battalion commander recommended approval of the discharge recommendation.


10.  On 28 October 1986, the applicant was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for misconduct with his service characterized as under honorable conditions (general).  He had completed a total of 8 years, 1 month, and 14 days of creditable active service.

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

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline).  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions (UOTHC) 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.

	b.  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 commander initiated separation action due to a pattern of misconduct.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.

2.  The governing regulation specifies that a UOTHC discharge is normally considered appropriate.  Therefore, the fact that the applicant received a general discharge is evidence that mitigating circumstances were taken into consideration.


3.  The applicant did not provide any evidence in support of his request.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20140016456



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