IN THE CASE OF:  	  

		BOARD DATE:  16 July 2015	  

		DOCKET NUMBER:  AR20140019419 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was released from the U.S. Army for misconduct and it was not true.  His staff sergeant did not like him and stated he would do whatever he could to get him out of the Army.  He was the only black man on the team.  Everything he did was still in compliance and his conduct had been nothing but respectful to the ranks below and above him as an E-3.

3.  The applicant provides no additional evidence in support of his application.

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 21 January 1994, he enlisted in the Regular Army for 3 years in pay grade E-3.  On 12 July 1994, he was assigned to Headquarters and Headquarters Company, 1st Battalion, 6th Infantry in Germany.

3.  During the period 3 February 1995 - 21 February 1996 he received 
24 counseling statements for:

* failing to license and register his privately owned vehicle in Germany
* failing to maintain his living quarters to standard
* failing to pay just debts
* poor job performance
* being late to formation

4.  He accepted nonjudicial punishment (NJP) on:

* 21 June 1995 for failing to go at the time prescribed to his appointed place of duty, NJP included reduction to private/pay grade E-2
* 7 September 1995 for failing to obey an order or regulation to pay his bills
* 22 April 1996 for being derelict in the performance of his duties by failing to properly register his privately owned vehicle, NJP included reduction to private/pay grade E-1

5.  On 19 April 1996, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

6.  On 6 May 1996, his commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) for his pattern of misconduct.  The reason for the proposed action was the applicant's having received NJP on three occasions and his actions reflected in 24 counseling statements.  The commander further notified the applicant he was recommending that he receive a general discharge under honorable conditions.  

7.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

8.  On 7 May 1996, after having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions 
of chapter 14 of Army Regulation 635-200 for misconduct.  He did not submit statements in his own behalf.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

9.  On 7 May 1996, the applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service with a general discharge under honorable conditions.  The commander stated he was recommending separation due to the negative example the applicant had set for the unit by his pattern of misconduct and showing his personal disregard of military regulations.  He did not consider it feasible or appropriate to attempt a disposition other than separation from the Army.

10.  On 7 May 1996, his intermediate commander recommended approval of the applicant's separation for a pattern of misconduct with a general discharge under honorable conditions.  He stated rehabilitation would not be in the best interest of the Army, as it would not produce a quality Soldier.

11.  On 8 May 1996, the appropriate authority approved the recommendation for discharge of the applicant, directed he be issued a General Discharge Certificate, and that he not be transferred to the Individual Ready Reserve.

12.  On 24 May 1996, the applicant was discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 due to misconduct with a general discharge under honorable conditions.  He had completed 2 years, 4 months, and 4 days of active service.  

13.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  
	a.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  That included discreditable conduct and conduct 
prejudicial to good order and discipline including conduct in violation of 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.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge for misconduct was not true.  He contends his SSG did not like him and that he was the only black man in the team.  However, he has not provided any substantive evidence to support his contentions.  The 24 counseling statements and three occasions of NJP support the reason for his discharge due to a pattern of misconduct.

2.  It is clear his entire period of service was considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.

3.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  The quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.


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)                                         AR20140019419





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ABCMR Record of Proceedings (cont)                                         AR20140019419



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