IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140017582 


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:

	a.  He wants his discharge upgraded to honorable based on his service.  The characterization of his service should reflect his actions.  He spent his career as a Soldier performing radiology exams.  He has taken care of wounded warriors, critically-burned patients, and civilians.  He helped diagnose patients with life-threatening conditions and performed radiological procedures at a very high level.

	b.  He received his first Article 15 for failing to attempt to put in a saline lock, but he was not comfortable in this particular instance because he had only performed one successful “stick” on a fellow Soldier.

	c.  He received his second Article 15 for being disrespectful in language to a staff sergeant (SSG), but this SSG harassed him and his family and he doesn't think confronting the SSG and using the verbiage he used was unreasonable.

	d.  He received his third Article 15 for working too many hours off-post, but he only did this to bring more money into his household and he made sure it did not affect his military duties.

	e.  He also outperformed his peers in the radiology department.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* service personnel records

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 June 2006 for 6 years.  He completed his training and was awarded military occupational specialty 68P (radiology specialist).  He was advanced to specialist effective 1 March 2008.

3.  In September 2008, nonjudicial punishment (NJP) was imposed against him for being derelict in the performance of his duties (failed to attempt to put in a saline lock before contacting the emergency department) and failing to repair (two specifications).

4.  In May 2009, NJP was imposed against him for using disrespectful language toward an SSG.

5.  In July 2009, NJP was imposed against him for disobeying two lawful orders (working more than 16 hours per week).

6.  His records are void of the specific facts and circumstances surrounding his final discharge action.  However, his DD Form 214 shows he was discharged on 16 October 2009 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct.  He completed 3 years, 4 months, and 4 days of creditable active service.  His service was characterized as under honorable conditions (general).

7.  In December 2013, the Army Discharge Review Board denied his request for an honorable discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  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.

	b.  Paragraph 14-12b provides that Soldiers are subject to separation action for a pattern of misconduct consisting of one of the following:	`

		(1)  discreditable involvement with civil or military authorities or

		(2)  discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army.

	c.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed the authority and reason for his discharge were commensurate with his overall record of service.  It appears that the discharge authority considered his entire record of service in directing a general discharge in lieu of the discharge under other than honorable conditions normally issued to Soldiers who are separated for a pattern of misconduct.

2.  In view of the foregoing evidence, there is an insufficient 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)                                         AR20140017582



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017582



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1