IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140021360 


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, in effect, reconsideration of his previous request for an upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states, in effect, that he was young and immature and he did not know how to handle infidelity, especially when his job kept him in the field away from his family.  He admits accepting nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for striking an individual in the face and another Article 15 for assaulting a noncommissioned officer (NCO).  However, he contends he was never absent without leave (AWOL) or charged with this offense as indicated in Docket Number AR20140006036.

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140006036, on 6 November 2014.

2.  He presents a new argument that warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 12 February 1985.  He was approximately 18 years of age at the time of his enlistment.  He attained the rank/grade of sergeant (SGT)/E-5 while serving in military occupational specialty 13B (cannon crewmember).

4.  A review of his record shows he accepted NJP on three occasions:

* 27 July 1988, for striking an individual in the face with an open hand
* 7 November 1990, for assaulting a NCO
* 7 March 1991, for failing to go at the time prescribed to his place of duty, physical training formation

5.  His record is void of evidence showing he was charged with being AWOL.

6.  On 25 June 1991, he was notified of his commander’s intent to initiate action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14-12(c), commission of a serious offense for the following reasons:  two Field Grade Article 15s, both for assault; a vacation of suspension for assault; and a summarized Article 15 for failure to repair.

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect of a waiver of those rights.  After this counseling, the applicant voluntarily waived consideration of his case by an administrative separation board/board of officers and elected not to submit a statement in his own behalf or to be represented by military counsel.

8.  On 5 August 1991, he was discharged under the provisions of paragraph 
14-12c, Army Regulation 635-200, and his service was characterized as under honorable conditions (general).  He completed a total of 6 years, 5 months, and 24 days of creditable active military service with no time lost.

9.  The applicant provided a self-authored letter which states despite all that happened, he is very proud of his service and would have given his life for his country.  He made the mistakes of a young and immature man but with psychological help he could have retired.  He contends the circumstances surrounding the Article 15s he received were as follows:

   a.  On 27 July 1988, he struck an individual, but only because he was young and immature.  However, he bounced back and went on to get promoted to the rank/pay grade of sergeant (SGT)/E-5.


   b.  On 7 November 1990, he denied knowingly assaulting an NCO and contends he was only preventing others from interfering with an altercation.
   
c.  On 7 March 1991, he was not AWOL; he was never AWOL during his military career.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following: 

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  
The unit commander must insure that an appropriate mental status evaluation is obtained for Soldiers recommended for separation under this chapter.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of the regulation.

	b.  Paragraph 3-7a provides that an HD 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.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded.

2.  The applicant’s age at the time of his enlistment is noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age and immaturity at the time of his offenses are insufficient reasons to overcome his record of indiscipline which included two incidents of assault and one incident of failing to repair (incorrectly recorded as an AWOL offense in an earlier ABCMR Record of Proceedings, but properly documented in his military records).

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights or that his punishment was too severe.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on his misconduct, the quality of the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an upgrade of his discharge.

5.  In view of the foregoing, his 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 to amend the decision of the ABCMR set forth in Docket Number AR20140006036, dated 6 November 2014.



      _____________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)                                         AR20140021360



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ABCMR Record of Proceedings (cont)                                         AR20140021360



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