BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150018193 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 BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150018193 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. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150018193 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 since the time of his discharge he has been a very responsible citizen and productive member of society. 3. The applicant provides no additional documentary evidence in support of his application. 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 1 May 1985 for a period of 4 years. Upon completion of training he was awarded military occupational specialty 31V (Unit Level Communications Maintainer). He was assigned to Germany on 25 October 1985. He was promoted to private first class/pay grade E-3 on 1 May 1986. 3. The applicant received nonjudicial punishment (NJP): a. on 12 January 1987, for failing to go at the time prescribed to his appointed place of duty (his punishment was 14 days of extra duty); and b. on 26 August 1987, for failing to go at the time prescribed to his appointed place of duty (five specifications) and failing to obey a lawful order issued by a noncommissioned officer (his punishment included, in pertinent part, reduction to the rank of private/E-1). 4. A DD Form 491 (Summarized Record of Trial) shows the applicant was tried by a summary court-martial convened by the Commander, 1st Battalion, 64th Armor, at Harvey Barracks, Germany, on 2 August 1987. a. He pled guilty to and was found guilty of violation of the Uniform Code of Military Justice: * Article 107, of making an official statement to a housing referral office official, with intent to deceive, that he had paid his rent for the months of March, April, and May 1987, which statement was totally false and known by the applicant to be false * Article 134, of being indebted to a landlord in the amount of $1,758.24 by failing to pay just debt for rent of a house for the months of March, April, and May 1987 * Article 123 (three specifications), of, with intent to defraud, altering certain rent receipts pertaining to the words and figures thereof b. He was sentenced to be confined for a period of 20 days. c. On 9 September 1987, the summary court-martial convening authority approved the sentence and ordered it executed. 5. On 31 March 1988, he received NJP for wrongfully using a controlled substance; marijuana. His punishment was 45 days of restriction and extra duty. 6. On 15 April 1988, the applicant's commander notified him that he was recommending him for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct). a. The reasons for his proposed action were the applicant committed forgery, made false statements, and wrongfully used a controlled substance (marijuana). b. The applicant was advised of his rights and of the separation procedures involved. The commander also informed him that he was recommending he receive a general discharge. c. The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel. 7. Following notification of the separation action, the applicant consulted with legal counsel and was advised of the rights available to him. a. He indicated that he would submit statements in his own behalf and he submitted a statement to the separation authority. b. He acknowledged that he understood he could receive a general discharge and that he may expect to encounter substantial prejudice in civilian life in the event of a character of service of less than honorable was issued to him. c. The applicant and counsel (a staff judge advocate officer) each placed their signature on the document. 8. The applicant submitted a statement in which he acknowledged the mistakes he had made, noted that he had already been punished for his mistakes, and asked the separation authority to overlook them in making his decision. He added that he had been under emotional stress because his family was no longer with him in Germany. He also acknowledged he had a problem with drugs. He offered his commitment to becoming a good Soldier, if he were allowed to continue to serve in the U.S. Army. 9. His chain of command recommended that the applicant be separated from the U.S. Army with a general discharge. 10. The separation authority approved the recommendation for discharge and directed the issuance of a general discharge. 11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under honorable conditions on 24 May 1988 UP AR 635-200, paragraph 14-12b, for misconduct based on a pattern of misconduct. He had completed 3 years and 24 days of net active service. 12. A review of the applicant's military personnel records failed to reveal evidence that he applied to the Army Discharge Review Board within that board's 15-year statute of limitations. REFERENCES: AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 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. Chapter 3, 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 applicant contends his general discharge should be upgraded because he has been a responsible citizen and productive member of society since the time of his discharge. 2. The applicant's administrative discharge for misconduct based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason for and type of discharge directed were appropriate and equitable. 3. The evidence of record shows the applicant received NJP on two occasions for his acts of indiscipline and he was reduced to private (E-1). a. He was convicted by summary court-martial for acts of misconduct involving making a false official statement, failing to pay just debt, and forgery. b. He then received NJP for wrongfully using a controlled substance. c. He failed to complete his 4-year enlistment obligation and he was administratively discharged for his misconduct (i.e., a pattern of misconduct). d. His record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit an honorable characterization of service. 4. The applicant's comments regarding his post-service conduct were considered. However, good post-service conduct alone is not normally a basis for upgrading a 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) AR20150018193 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018193 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2