IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150006127 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 upgrade to honorable of his general under honorable conditions discharge. He additionally requests to appear before the Board. 2. The applicant states, in effect: * he was told by his first sergeant (1SG) that his discharge would be upgraded after 1 year * he was placed in a stressful situation because his wife and child did not accompany him on his assignment to Germany; the separation ultimately led to their divorce * he feels the denial of many military benefits which resulted from his character of service was unjust 3. The applicant provides no additional documentary 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 enlisted in the Regular Army on 8 December 1981. Following initial training, he was assigned to Fort Lewis, WA on or about 7 May 1982. He was reassigned to a unit in Germany on or about 19 August 1983. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on four occasions. a. On 2 February 1982, for failing to obey a lawful order. His punishment consisted of a suspended forfeiture of $75 and extra duty for 7 days. b. On 7 December 1982, for stealing leather gloves of a value of $10 from the Main Post Exchange. He was reduced in rank/grade from private first class (PFC)/E-3 to private/E-2. He was also directed to perform extra duty for 14 days and received a suspended forfeiture of $150. c. On 20 January 1984, for failing to go to his appointed place of duty at the time prescribed (failure to repair (FTR)). He was punished with a forfeiture of $300 for 1 month, 14 days extra duty, and 14 days of restriction. d. On 19 April 1984, for two specifications of FTR. His punishment was to be reduced in rank/grade from specialist four/E-4 to PFC/E-3, to forfeit $100 per month for 1 month, perform extra duties for 14 days, and be restricted for 14 days. He appealed and, on 27 April 1984, his appeal was denied. 4. On 16 September 1983, he received a counseling statement from his section chief in which he was advised, in effect, his chain of command had determined his family should not receive command-sponsorship to live with the applicant in Germany. a. The reasons given were: * the short duration left for the unit to be in operation (the unit was being deactivated) * the potential for creating a financial hardship for the applicant given the high cost of living on the German economy * at the time he was not eligible for reenlistment due to past disciplinary problems; he had also previously required financial assistance * perhaps, in the future when the applicant took care of his financial problems, it might be possible to work something out b. The applicant acknowledged the counseling and requested to speak with his commander. The record does not show what resulted. 5. His available service record shows he was counseled by his platoon sergeant and unit commander on six occasions between September 1983 and March 1984. * the counseling statements show a pattern of FTR, apparently related to alcohol abuse; he denied having any issues with alcohol * he was referred to the Community Drug and Alcohol Assistance Center, but continued to have problems * he also showed a pattern of financial mismanagement; he denied having financial problems * he indicated, on more than one occasion, he wanted to be discharged because he felt his marriage was failing as a result of being separated from his wife and family * his chain of command made various attempts to rehabilitate the applicant, but eventually initiated administrative separation action 6. On 10 April 1984, the applicant's commander notified him he was being recommended for separation under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). He stated the basis for this action was the applicant's unsatisfactory performance. The commander noted the applicant had been counseled numerous times for being late for work, had received NJP on two occasions, and displayed a negative attitude and a lack of discipline. 7. On 10 April 1984, the applicant consulted with legal counsel. He acknowledged the action being recommended by his commander. He affirmed he: * understood the basis for the contemplated action and its effects * had been advised of his rights as well as the effect of waiving these rights * was not entitled to have his case heard by a board of officers, based upon his years of service * did not intend to submit statements in his own behalf * understood he could encounter substantial prejudice in civilian life by receiving a general discharge under honorable conditions * could apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading his character of service; applying would not, however, imply his discharge would be upgraded (emphasis added) 8. On 26 April 1984, the separation authority approved the commander's recommendation and directed the applicant be issued a General Discharge Certificate. On 16 May 1984, he was discharged accordingly. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under honorable conditions (general). Chapter 13, Army Regulation 635-200 was shown as the separation authority, and the narrative reason for separation was unsatisfactory performance. It also shows he completed 2 years, 5 months, and 9 days of net active creditable service and he was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 10. There is no indication the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations. 11. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a - an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. A Soldier may be separated under the provisions of chapter 13 when it is determined that he is unqualified for further military service due to unsatisfactory performance. Criteria include: * in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale * it is likely that the Soldier will be a disruptive influence in present or future duty assignments * it is likely the circumstances forming the basis for initiation of separation proceedings will continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely 12. Army Regulation 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a personal appearance hearing was carefully considered however, by regulation an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case the evidence of record, including independent evidence he provided is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant's records suggest, having determined his behavior to be a disruptive influence and that he would not develop sufficiently to become a satisfactory Soldier, his chain of command initiated separation action against him. Additionally, the record suggests the applicant sought to be discharged. 3. The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with applicable law and regulations at the time. 4. Based on his extensive record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. It does not appear there is a sufficient basis upon which to grant the requested relief. 5. The U.S. Army has never had a policy where a discharge was automatically upgraded. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The Board will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable. 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) AR20150006127 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006127 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1