IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150005043 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 in his characterization of service, from under other than honorable conditions to either honorable or general, under honorable conditions. 2. The applicant states his captain told him he was receiving an under other than honorable conditions discharge but it would change to honorable after 6 months. He contends he was very young and naïve and he fell into the wrong crowd. He ended up giving two positive urine samples, which is what he thought his discharge was based on. 3. The applicant provides no additional evidence in support of his request. 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 16 July 1986. He was awarded military occupational specialty 13B (Cannon Crewmember) upon completion of his initial entry training. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates: a. 18 February 1987, for wrongful use of marijuana; b. 27 March 1987, for feigning an injury for the purpose of avoiding his duties and for altering a sick slip by marking the "quarters" block and adding in the remarks section "2 weeks quarters"; and c. 8 June 1987, for being disrespectful in language toward a noncommissioned officer (NCO). 4. The applicant's unit commander informed him on 27 October 1987 that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, based on a pattern of misconduct. The unit commander indicated he was recommending the applicant receive an under other than honorable conditions characterization of service. The reasons cited for the proposed separation action were the applicant's NJP for use of marijuana, feigning an injury and forging a sick slip, and disrespecting an NCO. In addition, he had been counseled several times concerning his patterns of misconduct but he continued to ignore the counseling. He was advised of his right to: * consult with legal counsel * present his case before an administrative separation board * submit statements in his own behalf * waive his rights in writing 5. He consulted with legal counsel and he was advised of the basis for the contemplated action to involuntarily separate him under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct. He acknowledged he could be issued a discharge under other than honorable conditions and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He also acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge. He further acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 6. The applicant's battalion and brigade commanders recommended approval of the separation action, with his service characterized as under other than honorable conditions. 7. The separation authority approved the recommendation for the applicant's separation on 23 November 1987, under the provisions of Army Regulation 635-200, chapter 14, with service characterized as under other than honorable conditions. The applicant was discharged accordingly on 15 December 1987. 8. There is no evidence indicating he applied to the ADRB for an upgrade of his discharge. 9. 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 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), 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 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 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 AND CONCLUSIONS: 1. The applicant's request for an upgrade in his characterization of service from under other than honorable conditions to either honorable or general, under honorable conditions, was carefully considered. 2. He contends his captain told him his discharge would change to honorable after 6 months; however, the U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the passage of time. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service, the reason for discharge, or both were improper or inequitable. 3. He contends that he was young and naïve; however, age is not a mitigating factor for his misconduct. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their terms of military service. 4. The applicant's disciplinary history includes his acceptance of NJP for wrongfully using marijuana (a serious offense), for feigning an injury for the purpose of avoiding his duties, altering a sick slip to show he was granted quarters for 2 weeks, and being disrespectful towards an NCO. His record of indiscipline clearly diminished the overall quality of his service below that meriting an honorable or a general discharge. As a result, his discharge accurately reflects the overall quality of his service and there is an insufficient evidentiary basis to support granting the requested relief. 5. The available evidence confirms his separation processing for misconduct was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 6. The applicant has failed to provide evidence demonstrating that the command's actions and/or the characterization of his service were in error or unjust. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150005043 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005043 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1