BOARD DATE: 31 August 2017 DOCKET NUMBER: AR20160002875 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: 31 August 2017 DOCKET NUMBER: AR20160002875 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: 31 August 2017 DOCKET NUMBER: AR20160002875 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 under other than honorable conditions discharge to an under honorable conditions (general) discharge. 2. The applicant states individuals in the Criminal Investigations Division (CID) and his immediate supervisors were harassing him about an incident he was not involved in, which occurred off-post, and these individuals discharged him wrongfully. He is convinced he would have been a great Soldier if he received the proper support. 3. The applicant provides a self-authored statement and a letter of support. 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. Having prior service in the Arizona Army National Guard, the applicant enlisted in the Regular Army on 5 February 1999. He was subsequently stationed at Fort Lewis, WA. 3. His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: a. 27 July 1999, for, without authority, absenting himself from his unit from on or about 15 through on or about 29 June 1999; b. 16 September 1999, for, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: extra duty on 22 August 1999, failing to obey a lawful order from a superior noncommissioned officer, and for wrongfully using marijuana on or about 6 July to 6 August 1999. 4. His record shows that after his initial counseling to establish what was expected of him, the applicant was repeatedly counseled for missing accountability formation (8 times), failing to report for extra duty, failing to report back to work after an appointment, failing to report to work call, personal hygiene, for missing movement, and absent without leave (AWOL) amongst others. 5. His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 30 August 1999, which shows he suffered from no significant mental illness, and that he was mentally responsible, able to distinguish right from wrong, he had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). The applicant was psychiatrically cleared for any action deemed appropriate by the command. 6. On 4 November 1999, the applicant's commander notified him that he was initiating action to discharge him from the service for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12c(2). His commander stated the reason for his proposed action was due to the applicant's use of illegal drugs in addition to previously being AWOL, disobeying a senior noncommissioned officer and for failing to go at the time prescribed to his appointed place of duty on numerous occasions. The commander recommended the applicant receive an under other than honorable characterization of service. a. On 4 November 1999, the applicant acknowledged receipt of the notification. He waived legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, the rights available to him, and the effect of any action taken by him in waiving his rights. He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf. b. The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He further understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. c. The applicant's immediate commander formally recommended the applicant's discharge from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) with a characterization of service of under other than honorable conditions. d. His intermediate commanders recommended approval of the discharge action and a characterization of service of under other than honorable conditions. 7. On 24 November 1999, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), by reason of misconduct, abuse of illegal drugs and directed he be discharged with an under other than honorable characterization of service. 8. On 16 December 1999, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) by reason of misconduct with an under other than honorable conditions discharge. He completed 9 months and 28 days of net active service during this period with time lost for the period 15 June through 28 June 1999. 9. 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. 10. The applicant provides a letter presumably from a retired U.S. Army veteran who states he has known the applicant as a Soldier and civilian. He states the applicant has shown himself to be nothing but professional and courteous to his fellow man. He further states the applicant's reenlistment code is hindering his ability to proceed with higher learning and impeding his ability to possibly return to duty. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 provides for separation for various types of misconduct, which include drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate. b. 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 applicant contends that the Board should upgrade the characterization of his under other than honorable conditions discharge. 2. Evidence shows that shortly after his arrival to Fort Lewis, WA, he was repeatedly counseled with the intent of improving his substandard conduct. Notwithstanding the applicant's contentions, he provides no evidence and his record contains no evidence to support his claim that individuals in the CID wrongfully discharged him, that his immediate supervisors harassed him about an incident off-post that he was never involved in or that he would have been a great Soldier with the proper support. On the contrary, it appears he received ample support in the form of repeated counseling in an attempt to correct his substandard behavior. 3. The evidence of record shows he committed a serious offense in that he wrongfully used illegal drugs in addition to going AWOL, and disobeying a superior noncommissioned officer. As a result, his chain of command initiated separation action against him. His separation processing met all the requirements of law and regulation and fully protected his rights throughout the process. He was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) due to his own misconduct. 4. 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. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002875 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002875 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2