IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150013419 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: 1 September 2016 DOCKET NUMBER: AR20150013419 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: 1 September 2016 DOCKET NUMBER: AR20150013419 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. 2. The applicant states he was an exceptional Soldier throughout his brief military career. Minor disciplinary infractions did not warrant a general discharge. The punishment did not fit the crime. 3. The applicant provides copies of two letters of commendation and 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 11 July 1989. He held military occupational specialty 94A (Medical Specialist). 3. His DA Form 2-1 (Personnel Qualification Record - Part II) shows: a. he served in Alaska from 20 February 1989 through 19 March 1993; b. he was awarded the National Defense Service Medal, Army Good Conduct Medal (1st Award), Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars; and c. the highest rank he attained was specialist (SPC)/E-4. 4. His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: a. 20 November 1990, for consuming alcohol while under the legal age of 21; and b. 20 May 1991, for committing carnal knowledge with T________ B____. 5. His records also show he received NJP under the provisions of Article 15, UCMJ, on: a. 4 October 1991, for failing to go at the time prescribed to his appointed place of duty (twice); and b. 11 August 1992, for failing to go at the time prescribed to his appointed place of duty. 6. The applicant's immediate commander notified him of his intent to initiate separation action against him for minor disciplinary infractions. The commander stated the reasons for this action were the applicant's repeated disciplinary infractions, even after formal counseling, which clearly established that further attempts to develop him as a satisfactory Soldier were unlikely to succeed. The commander recommended a general discharge. 7. On 24 August 1992, the applicant acknowledged receipt of the separation notification, consulted with counsel, and submitted a statement in his own behalf. In his statement, he indicated: a. He did not feel his separation was warranted. He did not feel that his conduct should have been defined as a "pattern of misconduct." b. In total, over a two year period, he had received two NJPs, one summarized Article 15, and a few counselling statements. The misconduct which resulted in these punishments had been of a very minor nature. Most of the problems involved being late for physical training or other formations. He does not believe this was as much a pattern of misconduct as it was an occasional human mistake. c. He also did not feel that there had been adequate rehabilitative efforts in his case. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) mandated certain rehabilitative requirements before a Soldier may be separated under chapter 14, paragraph 14-12a. Specifically, AR 635-200, chapter 1, paragraph 1-18, required the following rehabilitative efforts: (1) general counseling; and (2) reassignment - either between platoons, companies, brigades, or, if necessary, a permanent change of station transfer. While it was true that he had received a few general counseling statements, he felt that these were insufficient to satisfy the requirement in AR 635-200. This was evidenced by the fact that no rehabilitative attempts were listed in paragraph 4 of his commander's separation memorandum. Furthermore, the statement that rehabilitative transfer was waived was nothing more than a "rubber stamp" to get around those requirements. d. He enclosed several statements from Soldiers he worked with on a daily basis. These statements reflected the broader picture of his Army career: specifically, that his duty performance and "Soldiering" ability were above average and not accurately represented by the few isolated problems he had. e. He enlisted in the Army to better himself. He wanted to use the educational benefits provided by the Department of Veterans Affairs (VA), so he needed an honorable discharge. f. He also noted that AR 635-200, chapter 1, paragraph 1-20, provided the separation authority with the power to suspend the separation for a probationary period not to exceed six months. This period would allow him the chance to prove himself and show the Army that he was serious about his career and about being a Soldier. 8. The applicant's immediate commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12a for minor disciplinary infractions. A rehabilitative transfer was waived. The commander believed that further duty of the applicant was not in the best interest of the Army. 9. The separation authority approved the applicant's discharge and directed he receive a General Discharge Certificate. 10. On 27 October 1992, the applicant was accordingly discharged. He had completed 3 years, 3 months, and 17 days of net active duty service. 11 There is no evidence showing the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge under that boards 15 year statute of limitations. 12. In support of his request the applicant provides copies of two letters of commendation, commending him for his role in assisting Soldiers during the 6th Engineer Battalion, Fort Wainwright, Alaska Troop Medical Clinic (TMC) 90-day rotation, which resulted in improved procedures and policies of patient care. The impression left at the TMC and care provided for the Soldiers brought distinct credit upon the applicant and the 6th Engineer Battalion. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. 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. c. 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: 1. The evidence of record shows the applicant was discharged for minor disciplinary infractions. The applicant’s commander reported the applicant had repeated minor disciplinary infractions and with formal counselling it was clearly established that further attempts were unlikely to help him become a successful Soldier. 2. The applicant's administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the narrative reason and type of discharge directed were appropriate and equitable based on the facts of the case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013419 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013419 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2