IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150003191 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 discharge to an honorable discharge. 2. The applicant states, in effect, his first sergeant was biased against him; he was getting out for medical reasons but his first sergeant fast-tracked his general discharge. 3. The applicant provides no additional evidence in support of his request. 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 12 July 1996. He completed his initial entry training and was awarded military occupational specialty 13B (Cannon Crewmember). 3. Following his initial entry training, he was assigned to Battery C, 3rd Battalion, 320th Field Artillery Regiment at Fort Campbell, Kentucky. 4. He was formally counseled by members of his chain of command on at least 25 occasions between 7 November 1996 and 6 November 1997 for a myriad of performance and conduct-related matters including, but not limited to, failing the Army Physical Fitness Test (APFT), failing to be at his appointed place of duty, failure to report, failure to follow instructions, passing bad checks, indebtedness, unsatisfactory appearance, and overall unsatisfactory duty performance. 5. He received a written reprimand on 2 July 1997 for writing worthless checks totaling $1,643.51 over a two-month period between February and March 1997. 6. He accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows: * on 1 August 1997, for failing to go at the time prescribed to his appointed place of duty on 24 July 1997 * on 27 October 1997, for failing to go at the time prescribed to his appointed place of duty on 17 and 18 October 1997 7. He was reassigned in November 1997 to Battery B, 3rd Battalion, 320th Field Artillery Regiment at Fort Campbell, Kentucky. 8. He was formally counseled by members of his chain of command on at least 31 occasions between 14 November 1997 and 1 April 1999 for a myriad of performance and conduct-related matters including, but not limited to, failing to be at his appointed place of duty, failure to report, failure to follow instructions, disobeying an order, theft, disrespecting a noncommissioned officer (NCO), conduct unbecoming a Soldier, passing bad checks, indebtedness, unsatisfactory appearance, and overall unsatisfactory duty performance. 9. He accepted NJP under the provisions of Article 15, UCMJ, as follows: * on 15 December 1998 and 8 February 1999, for disrespecting an NCO in each instance * on 16 March 1999, for disobeying the lawful order of an NCO 10. He underwent a physical examination on 7 December 1998, for evaluation by a medical evaluation board (MEB). a. His Standard Form (SF) 88 (Report of Medical Examination) shows in: (1) Item 45a (Physical Profile), his overall medical condition warranted a "3" in the "L (Lower extremities)" category of PULHES, the Military Physical Profile Serial System. (2) Item 46 (Examinee), a checkmark was placed in block "a" (Is Qualified For), with a hand-written notation to its immediate right that reads "separation IAW 40-501 [Standards of Medical Fitness]." b. His SF 89 (Report of Medical History) shows in: (1) Item 10 (Past/Current Medical History), he identified issues with swollen or painful joints and a "trick" or locked knee. (2) the blank space contained on the back (page 2) of the form, a hand-written notation that reads "10A+B – MEB." 11. Neither the corresponding Narrative Summary (NARSUM) nor DA Form 3947 (MEB Proceedings) are available for review in this case. 12. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was initiated on 24 February 1999, wherein the applicant's immediate commander flagged him by reason of "elimination (field initiated)." 13. He underwent a mental status evaluation on or about 3 March 1999. His DA Form 3822-R (Report of Mental Status Evaluation) shows he was found to be of normal behavior, fully alert and oriented, with unremarkable mood or affect and a clear thinking process with normal thought content and good memory. The examining official noted he possessed the mental capacity to understand and participate in the [elimination] proceedings and cleared him for any administrative action deemed appropriate by his command. 14. The applicant's immediate commander notified him on 18 March 1999 of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – pattern of misconduct. The applicant acknowledged receipt of this notification on the same date. 15. The applicant consulted with legal counsel on 22 March 1999 and was advised of the basis for the contemplated separation action and its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights. He submitted a statement in his own behalf, wherein he apologized to his chain of command, accepted responsibility for his actions, and pleaded with his commander to allow the continuation of his medical separation processing. 16. His immediate commander recommended his separation on 31 March 1999, under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – a pattern of misconduct. His commander recommended he receive an under honorable conditions (general) discharge. 17. The Commander, 101st Airborne Division, the General Court-Martial Convening Authority (GCMCA), approved his discharge on 1 June 1999, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – a pattern of misconduct. He determined the applicant did not meet the criteria for physical disability processing set forth in Army Regulation 635-200, paragraph 1-35 (Disposition through Medical Channels), sub-paragraph c. He further directed the applicant's receipt of a general discharge. 18. The applicant was discharged on 7 June 1999. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct. 19. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 20. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-35 of the version in effect at the time provided that: (1) When the medical treatment facility (MTF) commander or attending medical officer determines that a soldier being processed for administrative separation under chapter 14, does not meet the medical fitness standards for retention (Army Regulation 40–501, chapter 3), he or she will refer the Soldier to an MEB. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB. (2) If the MEB findings indicate referral of the case to a physical evaluation board (PEB) for disability processing under the provisions of Army Regulation 635–40 [Physical Evaluation for Retention, Retirement, or Separation], the MTF commander will furnish copies of the approved MEB proceedings to the soldier’s GCMCA and unit commander. The GCMCA may direct, in writing, that the soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and it has been determined that— (a) the Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination or; (b) other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. (3) The authority of the GCMCA to determine whether a case is to be processed through medical disability channels, or under administrative separation provisions, will not be delegated. 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. 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, 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; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. DISCUSSION AND CONCLUSIONS: 1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. The evidence of record shows he consulted with counsel and was advised of the basis for the separation action. His rights were fully protected throughout the separation process. 2. Although an under other than honorable conditions discharge was normally appropriate for discharge under Army Regulation 635-200, chapter 14, it appears the applicant's command considered his overall record of service and granted a certain amount of leniency in separating him with a general discharge. 3. Based on his record of indiscipline, including numerous instances of adverse counseling and NJP, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. The evidence does not support upgrading the discharge he received. 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) AR20100022260 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003191 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1