IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150007582 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 to a fully honorable discharge. 2. The applicant states the upgrade is needed in order to receive medical benefits and better employment opportunities/services. He was told his discharge would be upgraded 6 months after discharge. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and General Discharge Certificate. 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 November 1997 and he held military occupational specialty 77F (Petroleum Supply Specialist). The highest rank/grade he attained during his military service was private/E-2. He was assigned to Fort Lee, VA. 3. His records contain an extensive history of negative counseling by members of his chain of command for various infractions including: * conduct deficiency * failing to shave prior to formation * inability to adapt to the military * failing to report to formation * failing to report to appointed place of duty * insubordination * failing to obey an order or regulation * failing to follow orders * leaving his place of duty without authority * refusing to take a scheduled test * disregarding rules * failing to meet appearance and uniform standards * falling asleep during class 4. On 21 July 1998, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his drill sergeant and leaving his appointed place of duty without authority. His punishment consisted of a forfeiture of pay (partially suspended), extra duty, and restriction. 5. On 15 September 1998, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct - a pattern of misconduct. He cited the reason for the separation action as the applicant's continuous discreditable misconduct that was prejudicial to good order and discipline, failing to meet acceptable standards, continuous disrespect toward noncommissioned officers, and failure to obey regulations and rules. He recommended the issuance of a general discharge. 6. On 16 September 1998, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected not to submit a statement on his own behalf and acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * 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 both Federal and State laws 7. On 18 September 1998, he underwent a mental status evaluation. He was described as being fully alert and oriented with normal behavior and mood. His thought process was clear and his memory was good. He had the mental capacity to understand and participate in administrative proceedings. He was mentally responsible and met the retention standards of chapter 3 of Army Regulation 40-501 (Standard of Medical Fitness). He was diagnosed with an adjustment disorder with disturbance of conduct. He was cleared for any administrative action deemed appropriate by his chain of command. 8. Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - pattern of misconduct. The immediate commander requested a waiver of rehabilitative transfer and recommended a general discharge. 9. On 23 September 1998, his chain of command recommended a waiver of rehabilitative transfer and approval of the discharge action with the issuance of a General Discharge Certificate. The chain of command opined his rehabilitation was not in the best interest of the Army. 10. On 24 September 1998, consistent with the chain of command's recommendations, the separation authority approved the recommendation under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct and directed the issuance of a general discharge. Accordingly, the applicant was discharged on 1 October 1998. 11. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct with a general discharge. This form further confirms he completed a total of 10 months and 13 days of creditable active military service. 12. 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. 13. Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the version in effect at the time established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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 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 AND CONCLUSIONS: 1. The evidence of record shows the applicant displayed a pattern of misconduct consisting of various instances of disrespect, failure to report, insubordination, and other infractions. Accordingly, his chain of command initiated separation action against him. 2. The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. In connection with his separation processing and in response to his misconduct, he underwent a mental status evaluation wherein he was found mentally responsible. 4. The Army has never had a policy wherein character of service is upgraded due to the passage of time. 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. There is insufficient evidence to support upgrading his discharge to a fully honorable discharge. 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) AR20150007582 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007582 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1