IN THE CASE OF: BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150005764 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, in effect, he was told his discharge would be upgraded 6 months after his discharge date. He was not informed that he would have to request such an action. He received a general discharge, as a result of the perception of being disrespectful toward his chain of command. He felt powerless to change his chain of command's minds despite the extenuating circumstances of physical and verbal assault by his noncommissioned officers (NCO). 3. The applicant provides 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 enlisted in the Regular Army on 1 December 1987 and held military occupational specialty 43E (Parachute Rigger). The highest rank/grade he attained during his military service was private/E-2. He was assigned to Fort Bragg, NC 3. His records contain an extensive history of negative counseling by members of his chain of command for various infractions including: * packing a parachute with a broken suspension * using improper packing procedures * leaving his appointed place of duty * being disrespectful toward his NCOs and other Soldiers * failing to follow orders * a lack of motivation and poor attitude * failure to repair * insubordination 4. On 19 September 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction in the performance of his duties. His punishment consisted of a suspended reduction to E-1 and extra duty. 5. On 21 November 1988, he again accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order and being disrespectful in language toward an NCO. His punishment consisted of reduction to E-1, a forfeiture of pay (both suspended), and extra duty and restriction. 6. On 29 December 1988, the suspension of reduction to pay grade E-1 and forfeiture of pay imposed on 21 November 1988 were both vacated and ordered executed after the applicant failed to go to his appointed place of duty at the time prescribed. 7. On 10 January 1989, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his continued misconduct. He furnished the applicant a copy of this bar and the applicant elected to submit a statement in his own behalf. His statement is not available for review with this case. The bar was ultimately approved by the battalion commander. 8. On 27 January 1989, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana and failing to go to his appointed place of duty at the time prescribed. His punishment consisted of a forfeiture of pay, extra duty, and restriction. 9. Also in January 1989, in view of his repeated misconduct, he underwent a mental status evaluation. He was described as being fully alert and oriented with normal behavior and mood. His thought process was clear and his memory was good. He had the mental capacity to understand and participate in administrative proceedings. He was mentally responsible and met the retention standards of chapter 3 of Army Regulation 40-501 (Standard of Medical Fitness). He was cleared for administrative separation deemed appropriate by his chain of command. 10. On 27 March 1989, 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 - a pattern of misconduct. The commander recommended the issuance of a general discharge. 11. On 27 March 1989, the applicant acknowledged receipt of the commander's notification of the intent to separate him. He consulted with legal counsel and 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 on his own behalf. His statement is not available for review with this case. 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. 12. 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. The immediate commander requested a waiver of rehabilitative transfer and recommended the issuance of a general discharge. 13. On 27 and 29 March 1989, his chain of command recommended a waiver of rehabilitative transfer and approval of the discharge action with the issuance of a General Discharge Certificate. The chain of command opined his rehabilitation was not in the best interest of the Army. 14. 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 25 April 1989. 15. 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, 4 months, and 25 days of creditable active military service. 16. On 16 March 1992, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. As a result, the ADRB denied his petition for an upgrade of his discharge. 17. 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. 18. 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 evidence of record shows the applicant displayed a pattern of misconduct consisting of various instances of being disrespectful, failure to report, insubordination, use of marijuana, and other infractions. Accordingly, his chain of command initiated separation action against him. 2. The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. In connection with his separation processing and in response to his misconduct, he underwent a mental status evaluation wherein he was found mentally responsible. 4. The Army has never had a policy under which characterization of service is upgraded due to the passage of time. Based on his record of indiscipline, the applicant's service clearly did not meet the standards for Army personnel. There is insufficient evidence to support upgrading his discharge to a fully honorable discharge. 5. The available records to not contain any evidence that supports his contention that he was verbally assaulted by his NCO’s or that there were any other extenuating circumstances. 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) AR20150005764 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005764 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1