IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140018292 


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 under other honorable conditions (general) discharge to a fully honorable discharge. 

2.  The applicant states he was discharged mainly for minor offenses. 

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army on 30 July 1985.  He was trained in and held military occupational specialty 13R (Field Artillery Fire-Finder Radar Operator).  
3.  He served in Germany from 12 May 1986 to on or about 14 April 1987.  He was awarded or authorized the:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  His records contain an extensive history of accepting nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 31 December 1986, breaking restriction
* 23 February 1987, violating general regulation (wrongfully having female before authorized) 
* 25 February 1987, missing designated movement and disobeying a lawful order 
* 30 March 1987, failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order, and being apprehended by Military Police coming out a female Soldier's window

5.  He had undergone a mental status evaluation in March 1987.  He was cleared for administrative actions deemed appropriate by his chain of command. 

6.  On 31 March 1987, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 (Enlisted Personnel Separations) for misconduct – pattern of misconduct.  The specific reasons were cited as the applicant's conduct described as prejudicial to good order and discipline and included repeated violation of accepted standards of personal conduct despite verbal and written counseling and despite summary and formal NJP.  Additionally, there were assault and battery complaints against him in November and December 1986.  He committed acts of insubordination, violated general orders, violated the commander's visitation police, disobeyed orders, and he was arrested by Military Police. 

7.  The applicant acknowledged receipt of the commander's intent to separate him.  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 waived consideration of his case by a board of officers, waived his right to appear before a board of officers, and elected not to submit statements on his own behalf.  He acknowledged he understood:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

8.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 due to misconduct – pattern of misconduct.  The intermediate commander recommended approval of the discharge.  

9.  Consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 by reason of misconduct (pattern of misconduct) and directed issuance of an under honorable conditions discharge.

10.  The applicant was discharged on 16 April 1987.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged by reason of misconduct - pattern of misconduct under the provisions of chapter 14, Army Regulation 635-200, with his service characterized as under honorable conditions (general).  This form further confirms he completed 1 year, 8 months, and 17 days of creditable active military service during this period.

11.  There is no indication he 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.  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 was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	a.  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. 

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant exhibited a pattern of misconduct ranging from failing to go to his appointed place of duty, being disrespectful, disobeying lawful orders, and exhibiting a behavior that was prejudicial to good order and discipline.  As a result, his chain of command initiated separation action against him.  

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his pattern of misconduct.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to the 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 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)                                         AR20140018292





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ABCMR Record of Proceedings (cont)                                         AR20140018292



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