IN THE CASE OF: BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150015695 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: 22 December 2016 DOCKET NUMBER: AR20150015695 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: 22 December 2016 DOCKET NUMBER: AR20150015695 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 under honorable conditions to honorable. 2. The applicant states: a. He was 17 years old at the time of his enlistment and was not mature enough to realize the consequence of his actions. He served the majority of his enlistment. He was discharged after 26 months of service and only had 10 months remaining on his contract. b. He served his first 18 months of active duty without any problems. Then, in August 1988, a new company commander arrived who held a grudge against him and told him he was going to get rid of him. He received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for minor offenses, such as falling out of a physical training run and falling asleep on guard duty, all within 4 months of the new company commander’s arrival. He never committed a serious offense. c. He was not previously aware he could request an upgrade. He has a health issue and needs to seek treatment at the Department of Veterans Affairs hospital. He loves his country and the military. His father was a retired veteran of the Korean and Vietnam wars and it was his dying wish that he pursue this application for a discharge upgrade. 3. The applicant provides a self-authored statement 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 19 February 1987 at the age of 17. 3. His records indicate he accepted NJP under the provisions of Article 15 of the UCMJ on the following occasions for the following offenses: a. 22 August 1988, for failing to go at the time prescribed to his appointed place of duty, to wit: guard duty at 0800 on 7 August 1988, and was found sleeping while on post as a sentinel on the same day; b. 1 November 1988, for disobeying a lawful order from a noncommissioned officer to pick up an M60 machine gun barrel; c. 9 January 1989, for going from his appointed place of duty without authority, to wit: physical training formation on 9 December 1988; and d. 6 March 1989, for having knowledge of his duties and being derelict in the performance of those duties in that he willfully failed to stay in complete uniform while on duty as a sentinel on 19 February 1989. 4. On 16 March 1989, his immediate commander notified him of initiation of discharge action against him for misconduct – pattern of misconduct – under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, after receipt of NJP on four occasions for dereliction of duty, sleeping on duty, failing to go to his appointed place of duty, leaving his appointed place of duty, and disobeying a lawful order. In his 20 March 1989 recommendation for separation, his immediate commander further stated the applicant received numerous adverse counseling statements for not being at his appointed place of duty at the prescribed time, disrespect, and indebtedness. He was afforded ample opportunity to overcome these deficiencies without success. 5. He acknowledged receipt of the notification and was advised by consulting counsel of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him. He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may also be ineligible for many or all benefits as a veteran under both Federal and State laws if a discharge under other than honorable conditions were issued to him. He waived his right to counsel and did not submit statements in his own behalf. 6. His discharge for misconduct – commission of a serious offense – was approved based on his pattern of misconduct. A request for waiver of the rehabilitative transfer was approved and the approval authority directed the issuance of a General Discharge Certificate. On 19 April 1989, he was discharged under honorable conditions for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, paragraph 14-12c. His DD Form 214 shows he completed 2 years, 2 months, and 1 day of total active service. 7. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 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, commission of a serious offense, and convictions by civil authorities. 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 considered appropriate for a Soldier discharged under this chapter. 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 that 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 available evidence shows the applicant was properly and equitably discharged in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense – subsequent to a pattern of misconduct. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. His records reflect his acceptance of NJP under the UCMJ on four occasions for dereliction of duty, sleeping on duty, failing to go to his appointed place of duty, leaving his appointed place of duty, and disobeying a lawful order. This pattern of misconduct shows his service did not meet the standards of acceptable conduct and performance of duty for Army personnel or was so meritorious that any characterization other than honorable would have been clearly inappropriate. It appears that the approval authority took the totality of his service into consideration in directing his general discharge under honorable conditions. 3. Although he contends his discharge should be upgraded in part because he was young and immature at the time of his service, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015695 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015695 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2