IN THE CASE OF:  	  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20140018318 


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 that his discharge under honorable conditions be upgraded to honorable.

2.  The applicant states he completed his advanced individual training as a distinguished honor graduate.  He was a decorated Soldier.  Everything was going great and he wanted to make the Army his career.  Then his wife sneaked away in the middle of the night and flew to Virginia.  She called him the next morning and told him she was giving his first born son up for adoption.  She also told him that the child was not his.  He started lashing out and looked for a release.  He began under-age drinking and tested positive on a urinalysis.  This just added to his problems.  One day he was coming down the barracks steps and saw the first sergeant yelling at his wife.  He stepped in and told the first sergeant he had no right to yell at his wife.  His job was to protect and serve.  If he had a problem with his wife, he should come to him.  They argued back and forth and he was told to be “at ease.”  He was angry and hot headed.  He tried to walk away but was called back and told he was getting nonjudicial punishment.  He had a hearing in front of the battery commander.  He tried to explain the whole story to the commander but he would not hear his side.  The first sergeant did not get into any trouble.  The applicant has regretted his decisions ever since.  If he had done things differently, he would now be retired from the Army.


3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A two-page statement, signed and dated 1 October 2014

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.  On 3 December 1993, the applicant enlisted in the Regular Army.  He completed training as a Vulcan crewman.  He was subsequently assigned for duty at Fort Riley, Kansas.

3.  The applicant was counseled as indicated below:

* 1 March 1995: failure to report for work
* 3 March 1995: failure to report 
* 6 March 1995: charged with under-age drinking
* 7 April 1995: Failed to report for morning formation
* 6 May 1995: overdose of “no-doz”
* 16 May 1995: arrested for spouse abuse
* 17 May 1995: Missed two appointments with social services and trouble with sheriff’s department
* 22 May 1995: missed appointment with marriage counselor
* 24 May 1995: Bar to reenlistment initiated

4.  The applicant accepted the following nonjudicial punishments (NJPs):

* 20 July 1995: for willfully disobeying a lawful command from a noncommissioned officer (NCO)
* 29 August 1995: for wrongful use of cocaine

5.  On 3 August 1995, the commander notified the applicant of his intention to separate him from the service under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The commander stated that the applicant had disobeyed NCOs, had failed to report, had abused his spouse, and drank alcohol while under the legal age.  He indicated he was recommending an honorable characterization of service. 

6.  On 3 August 1995, the applicant’s commander recommended that he be separated from the service under the provisions discussed above and for the same reasons mentioned.

7.  On 4 August 1995, the applicant acknowledged receipt of the notification concerning his administrative separation.  He had consulted with legal counsel, and elected not to make a statement in his own behalf and to waive representation in the matter.

8.  On 11 August 1995, the appropriate authority approved the recommendation for separation and directed that he be issued a General, Under Honorable Conditions Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 7 September 1995.  He had completed a total of 1 year, 9 months, and 5 days of creditable active duty service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

	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 applicant contends that his discharge should be upgraded to honorable because he had completed his advanced individual training as a distinguished honor graduate; was a decorated Soldier; and wanted to make the Army his career.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The evidence of record shows that the applicant was counseled numerous times about his performance and misconduct.  He twice received NJP.  He has not offered any documentary evidence or argument that sufficiently overcomes his misconduct.

5.  The evidence states that the applicant had missed social services appointments and a marriage counseling appointment.  This indicates that the command had taken appropriate action to help the applicant with his problems.  Apparently, he could not, or would not cooperate or take advantage of the available help.

6.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

7.  There is no evidence of error or injustice in this case.  Accordingly, the applicant's request should be denied.

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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20140018318



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