IN THE CASE OF:	  

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140017558 


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 characterization of service.

2.  The applicant states he loves his country and the people who serve it and he would like to have benefits.

3.  The applicant provides his DD Form 214 (Certificate of Release of 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 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 4 January 1989 and held military occupational specialty 11M (Mechanized Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  His record contains numerous statements, counseling forms, and a delinquent account notification, dated from 28 May 1989 to September 1990, which show he was counseled on numerous occasions for:

* fighting
* disobeying orders and instructions from noncommissioned officers (NCO)
* being drunk on duty and smelling of alcohol
* failing to show up to the morning physical training formation or work because he was intoxicated
* being disrespectful (language and actions) to NCOs
* failure to pay his just debts
* having his credit/charge privileges suspended
* referral to an alcohol and drug rehabilitation program

4.  On 28 September 1990, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* failure to go to his appointed place of duty on 27 August 1990
* overindulging in alcohol or drugs, which incapacitated him for the proper performance of his duties on 27 August 1990
* being disrespectful in language to an NCO on 1 September 1990
* disobeying the order of an NCO on 1 September 1990

5.  His record contains an undated report of mental status evaluation, which shows he was evaluated due to his pending separation for misconduct.  The examining official noted the applicant's behavior was normal, he was fully alert and oriented, his mood or effect was unremarkable, his thinking process was clear and his thought content normal, and his memory was good.  The examining official also noted that the applicant had the mental capacity to understand and participate in proceedings.

6.  On 9 October 1990, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12b, for "misconduct - a pattern of misconduct."  The specific reasons his commander cited were the applicant's disrespect towards his superiors, problems with alcohol related incidents, and his overall attitude toward his job and the people appointed above him.  

7.  On the same date, the applicant acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He did not indicate a desire for legal counsel or a desire for a personal appearance before a separation board.  Additionally, there is no indication that he desired to submit a statement in his own behalf.  

8.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge.  He further acknowledged he understood that as a result of the issuance of a general under honorable conditions discharge he could be ineligible for many or all benefits as a veteran under Federal and State laws.

9.  On 9 October 1990, the applicant's immediate commander recommended that further counseling and rehabilitation efforts be waived and initiated separation action against him in accordance with chapter 14, Army Regulation 635-200 for misconduct.  On that same day, the intermediate commander recommended approval of the separation action.

10.  On 18 October 1990, the separation authority waived further rehabilitative efforts and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct and directed the issuance of a General Discharge Certificate.

11.  On 23 October 1990, the applicant was discharged accordingly.  His DD Form 214 shows he received an under honorable conditions (general) discharge by reason of "misconduct - pattern of misconduct."  He completed 1 year, 9 months, and 20 days of creditable active service.  

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his characterization of service within that Board's 15-year statute of limitations.  

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Section III (Acts or Patterns of Misconduct), paragraph 14-12b (A pattern of misconduct), in effect at the time, establishes policy and prescribes procedures for separating personnel for misconduct.  Soldiers are subject to separation per this section for a pattern of misconduct consisting of discreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct in violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  A discharge under other than honorable conditions 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. 

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his characterization of service has been carefully considered.

2.  The applicant was discharged on 23 October 1990, under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The records further show his discharge accurately reflects his overall record of service.  His records include an extensive history of misconduct that includes refusal to obey the direct orders and commands of the NCOs appointed above him.  Failing to obey orders and commands is a form of misconduct and a punishable and serious offense.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  In view of the foregoing, there is insufficient evidence to grant the requested.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20140017558





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ABCMR Record of Proceedings (cont)                                         AR20140017558



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