IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150011711 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150011711 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. IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150011711 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, under honorable conditions discharge to an honorable discharge. 2. The applicant states he thinks the reasoning behind the decision to discharge him was excessive for the incidents [that occurred]. 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 26 May 1987 in the rank of private first class (PFC) and he held military occupational specialty (MOS) 11B (Infantryman). On 14 September 1987, he was assigned to D Company, 5th Battalion, 16th Infantry Regiment, Fort Riley, KS. 3. On 7 October 1987, he was counseled by his immediate supervisor for failing to report to his appointed place of duty at the prescribed time and failing to follow instructions given by a noncommissioned officer (NCO). He had not reported to the training site as directed and admitted he had been sleeping in his room during the duty day. 4. On 21 January 1988, his commander was notified that the post blotter report showed that on: * 18 January 1988, he had been ticketed for speeding and was going 51 miles per hour (MPH) in a 30 MPH zone * 19 January 1988, he had been ticketed for driving with an expired registration and failing to maintain liability insurance 5. He was counseled by various members of his chain of command as follows: a. On 9 February 1988, for causing over $150 of damage to a hotel room he had rented off-post. Although he paid for the damage, it was still a black eye on the company. He was a Soldier and was expected to conduct himself within the standards of the Army. He caused a situation that required him (the first sergeant (1SG)) and the company commander to go to the hotel manager and apologize on behalf of the company. If this should happen again, he would be subject to administrative actions. b. On 12 March 1988, for discharging blank ammunition in the containment area while at the National Training Center (NTC), Fort Irwin, CA. c. On 21 May 1988, for failing to report for guard duty at 2100 (hours) as directed while at NTC. He returned to the barracks at 2200, was intoxicated, and was not in any manner to perform his duties. d. On 22 May 1988, for failing to return to the barracks at NTC at the prescribed time. 6. On 6 June 1988, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to return to the company area at the prescribed time on 22 May 1988. The punishment imposed was 14 days extra duty and 14 days restriction. 7. On 27 June 1988, he was arrested by civilian authorities for preventing a female acquaintance from leaving her quarters by pushing her into a wall and then striking her in the face with his fist. 8. He was counseled by various members of his chain of command as follows: a. On 30 June 1988, for being arrested off-post in Junction City, KS, for unlawful restraint and battery. He was advised that if he had problems he could not cope with or solve, he needed to seek assistance from the chain of command or various military and civilian agencies. If he continued to commit illegal acts or use violence, he would be recommended for discharge action. If he wished to stay in the Army, he had to learn how to deal with his problems in a nonviolent manner. b. On 27 September 1988, for failing to follow the instructions of the 1SG. He was instructed to report to kitchen patrol (KP) at 1200 and instead he was found asleep in the Morale Welfare and Recreation (MWR) tent. He (the 1SG) was going to speak to the commander and recommend him for a chapter 14 discharge. This, coupled with the blotter reports and other counseling statements, was enough substandard behavior. Any further actions of this nature would result in his being recommending for action under the UCMJ. 9. On 11 October 1988, he received NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order from an NCO and for wrongfully overindulging in alcohol resulting in his being incapacitated for the proper performance of his duties. Part of the punishment imposed was reduction to private (PV1)/E-1. 10. On 30 November 1988, he was counseled by the 1SG for being absent from his appointed place of duty. He had been absent from first call at 0500, his place of duty at 0600 hours, and formation at 0715, which resulted in his missing movement to training. He arrived at the company at 0800 and was told to report to Staff Sergeant (SSG) B at the charge of quarters (CQ) desk; however, he did not see SSG B so instead he went to his room until 1200. 11. On 2 December 1988, the applicant's immediate commander notified him that he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. The commander stated the reason for the action was the two Article 15s he received, his failure to obey orders, his poor performance, and his total lack of self-discipline. 12. On 8 December 1988, he was advised by legal counsel of the basis for the separation action being initiated against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct, and the procedures and rights available to him. He acknowledged he understood that if he received an under other than honorable conditions discharge he may be ineligible for many or all benefits under both State and Federal laws, and that he may expect to encounter prejudice in civilian life if he was issued a general discharge. 13. On 5 January 1989, his senior commander recommended approval of the separation action with his service characterized as under honorable conditions. 14. On 6 January 1989, the separation authority approved the applicant’s discharge and directed his service characterized as under honorable conditions. On 12 January 1989, he was discharged accordingly. 15. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - a pattern of misconduct, with an under honorable conditions (general) characterization of service. 16. 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. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 14 in effect at the time dealt with separation for various types of misconduct. Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct. This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, civil law, and time-honored customs and traditions of the Army. The issuance of an under other than honorable conditions discharge was normally considered appropriate for separations under the provisions of chapter 14. b. 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: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his record of counseling for repeatedly failing to report, repeatedly failing to follow instructions, being arrested by civilian authorities for battery, causing damage to a hotel room, and being disrespectful to an NCO. In addition, he received NJP on two occasions for failing to obey lawful orders and for being incapacitated for the proper performance of his duties. Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 3. Based on his overall record, his service did not meet the criteria for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011711 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011711 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2