IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150004669 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 a fully honorable discharge. 2. The applicant states: * at the time, his character did not warrant the type of discharge given * he has since been a great contributor to his community and church * he has developed and matured into a responsible and hard-working citizen and a proud father * even through adversity and injuries, his ambition to overcome obstacles and succeed has not wavered * he wants the Board to consider his personal evolution from the inside out, maturing into the man that he is today * he is a great team-player, friend, father, brother, son, and advocate for spinal cord injuries * he learned to overcome the road blocks, trials, and situations and use it to grow, learn, and get better 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Multiple reference letters 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 28 April 1993 and he held military occupational specialty 16S (MANPADS Crewmember). He was assigned to the 194th Armored Brigade, Fort Knox, KY. 3. He was awarded or authorized the Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and 1st Class Marksmanship Qualification Badge with Hand Grenade Bar. 4. His records show he was frequently counseled by members of his chain of command for various infractions including: * unauthorized guests in his barracks room * restriction * indebtedness * disrespecting a noncommissioned officer (NCO) * failing to repair 5. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on: * 18 November 1993 for violating the law by consuming an alcoholic beverage (under age) * 9 March 1994 for being disrespectful in language toward an NCO (he received a suspended reduction to E-2 and on 25 July 1994 the suspension was vacated by reason of failing to go at the time prescribed to his appointed place of duty) * 26 July 1994 for failing to go at the time prescribed to his appointed place of duty 6. On 25 September 1994, he was confined by civil authorities. He was released to military control on 7 October 1994. 7. He accepted additional NJP under the provisions of Article 15 of the UCMJ on: * 3 November 1994 for failing to go at the time prescribed to his appointed place of duty * 10 November 1994 for violating commander's policy on visitations and disobeying a lawful order 8. On 30 November 1994, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) for misconduct - pattern of misconduct. He cited the applicant's repeated misconduct of indebtedness, missing formation, underage drinking, assault, and disrespect. He recommended the issuance of a general discharge. 9. On 30 November 1994, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected to submit a statement in his own behalf. The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws. In his statement, the applicant stated: * although he was in trouble, there was times when he proved he could carry out the mission; he did not mind working hard and getting things done * he had three major deaths that affected him greatly and he tried to adjust to the military life at the same time * he learned a lot in the military, specially how to work with different people as a team * he felt an honorable discharge would be a good start to transition into civilian life 10. Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - pattern of misconduct. His platoon and company chain of command (squad leader, platoon sergeant, platoon leader, and first sergeant) described his conduct, duty performance, and potential as poor and each recommended separation. The immediate commander recommended the issuance of a general discharge. Likewise, the applicant's intermediate commander also recommended approval of the recommendation with the issuance of a general discharge. 11. On 7 December 1994, consistent with the chain of command's recommendations, the separation authority approved the recommendation under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct and directed the issuance of a general discharge. Accordingly, the applicant was discharged on 14 December 1994. 12. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct with a general discharge. This form further confirms he completed a total of 1 year, 7 months, and 5 days of net active service this period with lost time from 25 September to 6 October 1994. 13. 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. 14. He provides multiple reference letters from various individuals who describe him as: * a responsible, level headed, and hard working individual who has matured and is deserving of an opportunity to do some good * a superb worker and responsible individual * during employment, he acted as a responsible and professional employee * a well-mannered person who works well with a group of people * a kind, loving, and honest man * an individual with a desire to succeed who is ambitious * working well with others, goes to church, is a family man 15. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included 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. 16. Army Regulation 635-200, 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 applicant exhibited a pattern of misconduct as evidenced by his multiple instances of NJP and negative counseling. Accordingly, his chain of command initiated separation action against him for misconduct under the provisions of chapter 14 of Army Regulation 635-200. He was advised of and exercised his rights. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to this misconduct. 3. There is an insufficient basis upon which to upgrade his discharge to fully honorable. His record contains multiple instances of negative counseling, at least 4 Article 15s, and lost time. His discharge is appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. Therefore, there is no 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) AR20150004669 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004669 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1