BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20140021114 


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 upgrade of his general under honorable conditions discharge to honorable.

2.  The applicant states:

   a.  The discharge was due to a mutually agreeable decision because there were too many enlistees at the time.  It was not based upon any detrimental behavior on his part.  He was advised that an upgrade would only require a simple request with paperwork.
   
   b. In a 14 May 2014 letter to a U.S. Senator, the applicant stated he entered the Army to pursue a career in computer technology, but he was misled by a shady recruiter and enticed by a generous enlistment bonus.  He was surprised to find himself attached to an artillery unit where the firing device was passed off as a computer in order to justify his assignment there.  He also relates:
   
   	(1)  He established a rapport with the Fort Sill, Oklahoma, base commander who was going to send him to another school so he could become the commander's legal clerk and was also going to aid him in applying for officer training.  This fell through because of the provisions of his enlistment bonus agreement.
   
   	(2)  He found himself in a unit that did not appreciate his leadership skills, but instead encouraged mediocrity.  He found it hard to adjust from being an ?idea-minded thinker to being an unquestioning follower.?
   
	(3)  He was told he could not be transferred because he was a Lance Missile Nuclear Warhead inspector with a Secret clearance.  He was denied opportunities to attend airborne or ranger training.  He had no chance to improve his situation as long as he was at Fort Sill.  Given his ambition and abilities, he felt he was a round peg in a square hole.
   
   	(4)  When the opportunity to get out arose, he quickly took it.  Additionally he was told that all he had to do to get his discharge upgraded was to ask.
   
   	(5)  He is currently attending Southeast Arkansas College to get trained in computer-aided design.  He has been taking advantage of benefits through the Veterans Rehabilitation Assistance Program.  Unfortunately this will soon expire.  He has identified other programs but an honorable discharge is required. 

3.  The applicant provides the 14 May letter of explanation described above, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of his Reenlistment Eligibility Data Display report.

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 7 March 1985, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program in pay grade E-3.  He further enlisted in the Regular Army on 27 March 1985 and received an enlistment bonus that was contingent upon his completion of training and service in a specific military occupational specialty. 

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

	a. 30 January 1986 for failing to obey a lawful order issued by a commissioned officer and

b.  13 June 1996 for willfully disobeying a lawful order of a sergeant first class, his senior noncommissioned officer (NCO).

4.  Additionally, in 1986 he was counseled on numerous occasions, including:

* 31 January-improved appearance and good work performance
* 27 February-verbal outbursts frequently escalating to disrespect
* 11 March-writing bad checks
* 18 April-being late to formation
* 18 April-disrespect to an NCO
* 13 May-making a false official statement
* 15 May-sleeping at work
* 2 July-failing to obey a lawful order
* 10 July-sleeping at work

5.  A 14 July 1996 Mental Status Evaluation found his behavior normal.  He was fully alert and oriented and displayed an unremarkable mood, clear thinking, normal thought content, and good memory.  The examining physician recorded the impression that the applicant had the capacity to understand and participate in separation proceedings, was mentally responsible, met retention standards, and any was psychiatrically cleared for administrative action as deemed appropriate by the command.

6. On 22 July 1986, the applicant acknowledged receipt of a letter from the unit commander informing him that separation action was being initiated under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, for unsatisfactory performance.  The applicant was advised of his rights. 

7.  The unit commander observed that the applicant had not undergone a rehabilitative transfer but recommended the applicant be separated for unsatisfactory performance because he had expressed a dislike for the Army and seemed destined to become a major disciplinary problem.
 
8.  The applicant consulted with counsel, elected to not submit statements in his own behalf, and acknowledged that he could expect to encounter substantial prejudice in civilian life if he were to receive a general discharge under honorable conditions.

9.  The separation authority approved the unit commander's recommendation and directed a General Discharge Certificate be issued.  On 29 July 1986, the applicant was so separated under the provisions of Army Regulation 635-200, chapter 13.  He completed 1 year, 4 months, and 3 days of net active service.

10.  There is no available evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.
 
11.  The Table of Maximum Punishments of the Manual for Courts Martial, then in effect, shows that a bad conduct or dishonorable discharge is authorized for any offense of disrespect or willful disobedience of a commissioned or noncommissioned officer. 

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

	a.  Chapter 13 provides for separation due to unsatisfactory performance when, in the commander's judgment, the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 appropriate for a Soldier discharged under this chapter.

	c.  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.

	d.  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 states that the discharge was a mutually agreeable solution, but he presented no evidence that the outcome would have been different if he had not been agreeable.

2.  The applicant accepted NJP for two instances of willful disobedience of lawful orders and any one of these serious offenses could have resulted in a punitive discharge had he been tried by court-martial.

3.  Additionally, the applicant was counseled on numerous occasions for outright misconduct as well as unsatisfactory performance.  He had clearly placed himself in a situation where separation for misconduct and a discharge under other than honorable conditions was authorized and arguably appropriate.  Separation with a general discharge under honorable conditions for unsatisfactory performance was extremely lenient outcome given the facts of his service.

4.  Far from being a mutually agreeable solution to an alleged problem of there being too many recruits, the applicant had no options in the separation process, except that he could have submitted statements in his own behalf, which he elected not do.

5.  There is also no evidence the applicant was informed that upgrading his discharge was essentially an automatic process.

6.  The Army does not now have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.


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)                                         AR20140021114



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ABCMR Record of Proceedings (cont)                                         AR20140021114



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