BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140019811 


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, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he:

	a.  feels that his first offense did not require an immediate discharge and he should have been able to finish his term since he only had a few weeks left.

	b.  also feels that the first sergeant (1SG) wanted to get rid of all the Soldiers who were not airborne and the minorities because a few of his fellow Soldiers were discharged.

	c.  the 1SG would say he hated "legs" and they were not real Soldiers.

	d.  he knows it has been a quite a few years and he now works as a corrections food service manager at the Nisqually public safety complex thanks to the training he received in the Army.

	e.  he also receives disability, but hopes to receive an honorable discharge for his records.

3.  The applicant provides no additional documents 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.  The applicant enlisted in the Regular Army on 15 July 1986.

3.  On 10 January 1990, he accepted field grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* two instances of striking a noncommissioned officer (NCO) on 
23 November 1989
* slapping an NCO on 23 November 1989
* being drunk and disorderly on 23 and 24 November 1989
* wrongfully communicating a threat to injure an NCO on 23 and 
24 November 1989
* wrongfully communicating a threat to an officer to injure an NCO on 
23 November 1989
* disobeying a lawful order on 24 November 1989

4.  On 19 January 1990, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct – commission of serious offenses.  The reason for the proposed action was his disobeying a lawful command; unlawfully striking, hitting, and slapping an NCO; being drunk and disorderly; and communicating threats to injure an NCO.  The commander advised the applicant that he was being recommended for a general discharge.

5.  On 22 January 1990, the applicant acknowledged receipt of the proposed separation action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant declined his rights to legal counsel and to submit a statement in his own behalf.

6.  As such, his company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, on 26 January 1990.  The commander also recommended waiver of the rehabilitative requirements.

7.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation) dated 26 January 1990.  The examining physician determined he was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

8.  On 1 February 1990, he was discharged for misconduct with his service characterized as general, under honorable conditions.  He completed 3 years, 
6 months, and 17 days of net active service this period.

9.  On 15 March 1991, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

10.  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, conviction by civil authorities, desertion, or absence without leave.  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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a field-grade Article 15 for offenses under the UCMJ and was separated with a general, under honorable conditions discharge for serious misconduct for disobeying a lawful order, striking, hitting, and slapping an NCO, and communication threats.  
2.  The evidence of record shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Although an under other than honorable conditions discharge was normally warranted for separation for misconduct, it appears his chain of command considered his overall service when he was recommended for and subsequently approved for separation with a general discharge.

4.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20140019811





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019811



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1