IN THE CASE OF:	  

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150002663 


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, an upgrade of his under other than honorable conditions discharge.

2.  The applicant did not specifically request an upgrade of his discharge.  However, he states:

* he has no medical or any other type of benefit that the Army should have granted for his 8 years of service 
* he got hurt and went to the Department of Veterans Affairs (VA) but was turned down
* his separation from the military was based on another Soldier who did not like him 
* the other Soldier did not respect his (the applicant's) rank/grade of specialist five (SP5)/E-5 and wanted to control him with his E-6 rank
* he is sure there are people with bigger problems than he had and are still in the Army 

3.  The applicant does not provide any additional evidence. 

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's service records show he enlisted in the Regular Army (RA) on 3 January 1977 and he held military occupational specialty 76P (Materiel Control and Accounting Specialist).  

3.  His record also shows he served in Germany from October 1978 to October 1981.  He reenlisted in the RA on 3 July 1980 and on 4 April 1983.  He was promoted through the ranks to SP5/E-5 on 14 November 1980.  

4.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, Driver Badge, and Army Good Conduct Medal. 

5.  On 27 March 1979, in Germany, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order. 

6.  On 10 September 1979, also in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ for committing carnal knowledge with a female under the age of 16. 

7.  Following completion of his Germany tour, he was reassigned to Redstone Arsenal, AL.  While there, he was repeatedly counseled by members of his chain of command for multiple infractions, including: 

* being absent from formation
* being absent from mandatory classes
* failure to repair
* being absent from his appointed place of duty
* failing to pay debt
* disobeying orders

8.  On 13 June 1983, he accepted NJP under the provisions of Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty. 

9.  On 28 October 1983, he again accepted NJP under the provisions of Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty and willfully disobeying a lawful order.  He was reduced to E-4.

10.  On 19 December 1983, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct as evidenced by his multiple instances of NJP.  He was furnished a copy of this bar and elected to submit a statement on his own behalf but failed to do so.  His chain of command reviewed his bar and it was ultimately approved on 12 February 1984 b the Commanding General, U.S. Army Missile Command, Redstone Arsenal. 

11.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders 71-36, issued by Headquarters, U.S. Army Missile Command, Redstone Arsenal on 11 April 1984, reducing him from E-4 to private/E-1 effective 9 April 1984. 

	b.  Orders 71-37, issued by Headquarters, U.S. Army Missile Command, Redstone Arsenal on 11 April 1984, ordering his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

	c.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 19 April 1984 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.  The DD Form 214 shows he completed 7 years, 3 months, and 17 days of creditable active service.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	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. 

	c.  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’s record is void of the complete facts and circumstances that led to his discharge.  However, his service records contain a DD Form 214 that shows he was discharged on 19 April 1984 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct with an under other than honorable conditions discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His record reflects a period of service marred with misconduct that included four instances of NJP for various violations, an extensive history of counseling, and a bar to reenlistment.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

4.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his/her discharge.  The granting of veteran's benefits is also not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20150002663



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150002663



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1