IN THE CASE OF:  	  

		BOARD DATE:  16 June 2015	  

		DOCKET NUMBER:  AR20140017642 


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 under honorable conditions.

2.  The applicant states:

* he was wrongly discharged because he was not given the opportunity to express his point prior to reduction in rank and discharge
* there was a fair amount of racism in his unit and some of his peers were hateful toward him because he progressed in rank quickly, being promoted to sergeant/E-5 in 24 months
* his achievements and awards are proof that he was an outstanding noncommissioned officer
* he misses the Army and were he not 54 years old, he would enlist now

3.  The applicant provides:

* General Discharge Certificate, dated 2 February 1988
* Army Commendation Medal Certificate, dated 11 August 1986
* Certificate of Training, Trainer's Workshop, dated 9-11 September 1985
* DA Form 2166-6 (Enlisted Evaluation Report), dated 17 July 1984
* Certificate of Achievement, dated 26 January 1983
* Certificate of Achievement, dated 1 February 1983
* Certificate of Achievement, dated 7 February 1983
* DA Form 2166-6, dated 24 February 1983
* Service School Academic Evaluation Report, dated 3 June 1983
* Certificate of Completion, Primary Noncommissioned Officer Course for Combat Arms, dated 3 June 1983
* Certificate of High School Equivalency, dated 28 October 1982
* DA Form 2166-6, dated 11 June 1982
* Scroll of Appreciation, dated 10 August 1981
* Honorable Discharge Certificate, dated 9 August 1981
* Certificate of Achievement, dated 28 July 1981
* Certificate of Training, Battalion Training Management System, Trainer's Workshop, dated 15 May 1981
* Temple University, Certificate of Progress, dated 13-8 May 1981
* Certificate of Achievement, dated 3 March 1981
* Certificate of Training, Equal Opportunity Orientation Seminar, dated 
27-28 January 1981
* Certificate of Training, German Headstart, dated 12-23 January 1981

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 5 February 1979.  He was discharged on 9 August 1981 for purposes of immediate reenlistment on 10 August 1981.

3.  His records contain numerous DA Forms 4856 (General Counseling Form), wherein he is counseled for the following infractions:

* missing company and battalion formation on 27 October 1986
* poor performance, poor sense of duty, not showing the type of performance and leadership needed to go before the E-6 promotion board during the month of November 1986
* failure to properly supervise his men and failure to keep his chain of command informed on 1 March 1987
* failure to pay his phone bill, returned check, receipt of second letter of indebtedness by his commander regarding him on 14 March 1987
* failure to be at his appointed place of duty on 15 March 1987
* missing morning formation on 18 March 1987
* failure to be at his place of duty on 16 April 1987
* failure to be at his place of duty on 17 April 1987

4.  On 5 March 1987, he received a letter of reprimand from his battalion commander for failing as a noncommissioned officer to take appropriate actions to provide for the basic care of his Soldiers by leaving a private alone overnight on 28 February 1987 as a single guard on a firing range, without relief, without rations, without sleeping gear, and without transportation in the morning.

5.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the following offenses:

* 10 June 1987 – for the use of marijuana between the dates of 6 April 1987 and 5 May 1987
* 15 June 1987 – for absenting himself without authority from his place of duty on 16 and 17 April 1987

6.  On 29 June 1987, the applicant's immediate commander initiated discharge action against him for misconduct under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The applicant was advised by consulting counsel of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him.  He submitted statements in his own behalf, which are not available for review by this Board, and requested to exercise his right to an administrative separation board.  A board of officers was scheduled to convene on 11 December 1987, but on 9 December 1987, the applicant waived his right to an administrative board conditioned on receiving a discharge no less favorable than a general discharge.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

7.  A DA Form 3822 (Report of Mental Status Evaluation), dated 17 December 1987, shows the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, met Army retention requirements, and was psychiatrically cleared for any administrative action deemed appropriate by his command.

8.  On 30 December 1987, the approval authority, the Commander, 2d Armored Division, Fort Hood, TX, approved the recommended discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct – drug abuse.  He directed the issuance of a general discharge under honorable conditions.

9.  On 2 February 1988, the applicant was discharged under honorable conditions.  His DD Form 214 shows he completed 8 years, 11 months, and 28 days of total active service.

10.  On 3 October 1988, the applicant appealed to the Army Discharge Review Board for an upgrade of his discharge.  On 22 March 1989, the Army Discharge Review Board denied his request, concluding that his discharge and the character of his service were both proper and equitable based on his pattern of misconduct.

11.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 is normally considered appropriate for a Soldier discharged under this chapter.

	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 request for upgrade of his general discharge under honorable conditions was carefully considered.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His records reflect his acceptance of NJP under the UCMJ on two separate occasions as well as receipt of a letter of reprimand.  Based on his record of indiscipline, the applicant's 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 no basis for upgrading his discharge to honorable.

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)                                         AR20140017642



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ABCMR Record of Proceedings (cont)                                         AR20140017642



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