IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150007231 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 believes what he did to another Soldier was wrong; however, he did not have to be put out for it, especially when his section leader was counseling him because the section leader had an issue with him * he has been out of the Army for 19 years and has learned from the mistake that he made at age 23 * he has grown up and he is a role model for kids * he understands and takes full responsibility for his actions * he is sorry for his actions, remorseful, and humbled * he requests that he be forgiven and hopes the Board upgrades his discharge. 3. The applicant provides a letter of support and letters submitted during his separation processing. 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 17 January 1996. He held military occupational specialty 13B (Cannon Crewmember). He served in Korea from August 1996 to July 1997. 3. He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 4. He was frequently counseled by members of his chain of command for various infractions, including: * failing to follow instructions * doing the minimum required * substandard uniform/appearance * attitude problems * riding sick call 5. On 14 May 1997, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for unlawfully striking another Soldier several times in the eye and mouth with his fist. His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty and restriction. 6. On 16 June 1997, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c by reason of commission of a serious offense: assaulting a Soldier with his fist. The immediate commander recommended a discharge under honorable conditions (general). 7. On 17 June 1997, the applicant acknowledged receipt of the commander's intent to separate him. He subsequently 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 available to him. He requested consideration of his case by an administrative separation board and/or personal appearance before a board, but he was ineligible for such board as he did not have 6 or more years of service. He also elected to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; but, an act of consideration by either board did not imply his discharge would be upgraded 8. In his statement, the applicant requested to be retained in the Army. He explained his childhood, upbringing, education, financial difficulties at home, jobs, and enlistment in the Army. He also explained his tour in Korea and indicated he never intended to hurt the other Soldier. The incident started small but grew larger. The other individual was drunk and made a racial slur. He reacted in anger and also due to alcohol; he did not exercise good judgment. One of his sergeants did not like him and accused him of assault. His section sergeant set him up for failure and disliked him. 9. He also submitted statements from other Soldiers who described the unfair treatment the applicant was receiving from his section sergeant. The authors opined the section sergeant would do things to set the applicant up or provoke him and then write him up for those things. 10. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, commission of serious offense, in accordance with Army Regulation 635-200, paragraph 14-12c. His intermediate commander recommended approval of the discharge action and a waiver of the rehabilitative transfer requirements. It was recommended that his service be characterized as under honorable conditions (general). 11. On 29 June 1997, the applicant’s immediate commander submitted a statement wherein he stated the applicant was a poor Soldier whose sole intent was to get by. He failed to maintain even the baseline standard expected of any Soldier. He demonstrated an inability to meet expectations even when special steps were taken on his behalf. The day he assaulted the other Soldier, he was drunk and celebrating his substance abuse counselor’s opinion that he was ready to be removed from the substance abuse program. His accusations of other noncommissioned officers disliking him or being unfair to him were unfounded and/or unsubstantiated. 12. On 15 July 1997, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge with his service characterized as under honorable conditions (general). The applicant was discharged accordingly on 29 July 1997. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct, under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under honorable conditions. He completed 1 year, 6 months, and 13 days of creditable active military service. 14. There is no indication in his records that he petitioned the ADRB for a review of his discharge within that board’s 15-year statute of limitations. 15. He provides a statement from a Department of Veterans Affairs service officers who opines that it has been some time since the applicant was discharged and he feels the applicant did not deliberately set out to be a problem to the Army. He is remorseful and sorry for his actions. 16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 was 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. a. Paragraph 3-7a states 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant's records show he committed a serious offense in assaulting another Soldier. Accordingly, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel. His misconduct diminished the quality of his service. 3. The applicant's service was not satisfactory and was insufficiently meritorious to warrant an upgrade of his discharge. Additionally, the Army does not now have nor did it ever have a policy wherein a characterization of service is upgraded due to the passage of time. There is insufficient evidence to show his characterization of service is in error or unjust. 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) AR20150007231 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007231 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1