IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150005137 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 honorable. 2. The applicant states: a. He was not provided with proper legal counsel. He was only given the option to sign his discharge or his first sergeant would find a way to send him to prison for something he didn't do. Being a young and impressionable youth, he took the first option. b. On the first day of reporting, the first sergeant called all the people from New York, Los Angeles, and Chicago to the front of the formation and stated he hated people from these places in his Army and he was going to get them kicked out or sent to prison. He went downhill from there. c. He has always felt cheated of his full military service by this action, but he went on with his life. He now wants to correct this for himself and his family. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 was born on 14 October 1967. He enlisted in the Regular Army on 23 September 1986 for a period of 3 years. He was approximately 19 years of age at the time of his enlistment. He completed his training and was awarded military occupation specialty 13B (cannon crewmember). 3. Between April 1987 and February 1988, nonjudicial punishment (NJP) was imposed against him on four separate occasions for: * failing to repair (three specifications) * failing to repair and disobeying a lawful order 4. He was counseled on numerous occasions for: * attitude and initiative * failing to shave, lying, and fighting * lack of self-discipline * education * job performance * room not prepared for inspection * lack of motivation and sleeping on duty * failing to repair * conduct, performance, and behavior 5. On 29 February 1988, a bar to reenlistment was imposed against him. 6. On 29 March 1988, discharge proceedings were initiated against him for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b. His unit commander cited his four NJPs and numerous counseling statements. 7. On 4 April 1988, he consulted with counsel and requested a personal appearance and consideration of his case by a board of officers. He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a discharge under conditions other than honorable. He elected to submit a statement in his own behalf. In summary, he stated: * he wanted to remain in the Army because of job satisfaction and education opportunities * he wanted to further better himself as a Soldier and to serve his country * from the first day he arrived at his current unit he was told he was from New York and was probably a drug addict * he never came up positive on an urinalysis * he doesn't use drugs * this was a bad start with his chain of command * due to this bad relationship with his chain of command, he felt he had not been given a fair chance * if given a chance and a different chain of command, he could rehabilitate himself and work to the degree of efficiency he is capable of * he requested a rehabilitative transfer instead of a discharge 8. On 27 April 1988, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge. 9. On 9 May 1988, he was discharged under honorable conditions (general) for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b (patterns of misconduct). He completed 1 year, 7 months, and 17 days of creditable active service. 10. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. Chapter 3 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. b. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, pattern of misconduct, and commission of a serious offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. DISCUSSION AND CONCLUSIONS: 1. Although the applicant contends he was young and impressionable, he was almost 19 years of age when he enlisted and he successfully completed training. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. He contends he was not provided proper legal counsel. However, the evidence shows he consulted with counsel on 4 April 1988. 3. His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 4. His record of service included adverse counseling statements, four NJPs, and a bar to reenlistment. As a result, his record of service was not so meritorious as to warrant an honorable discharge. 5. Although a discharge under other than honorable conditions is normally considered appropriate for the authority and reason for his discharge, he was given a general discharge under honorable conditions. An honorable discharge was not authorized under the provisions of Army Regulation 635-200, chapter 14. 6. In view of the aforementioned evidence, there is no basis for granting the 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 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) AR20150005137 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005137 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1