IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150008216 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 honorable. 2. The applicant states there was racial tension in his unit and he believes he is entitled to the upgrade. 3. The applicant does not provide any additional evidence. 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 14 March 1978. He completed basic combat and advanced individual training and he was awarded military occupational specialty 12B (Combat Engineer). 3. He was assigned to the 13th Engineer Battalion, Fort Ord, CA. The highest rank/grade he attained was private/E-2. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 1 May 1979 for assaulting another Soldier with a wine bottle * 19 September 1979 for making a false official statement, with intent to deceive, that he had equipment stolen from his locker, and dereliction of his duties * 5 November 1979 for dereliction in the performance of his duties * 5 February 1980 for dereliction in the performance of his duties 5. His records show he was frequently counseled by various members of his chain of command for various infractions including multiple instances of disrespect, insubordination, disregard of military orders, failing to go at the time prescribed to his appointed place of duty, being absent from formations, substandard duty performance, and having a negative attitude. 6. On 18 December 1979, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations–Enlisted Personnel) for misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities. 7. On 14 January 1980, 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 consideration of his case by a board of officers (separation board) and personal appearance before a separation board, and elected not to submit a statement in his own behalf. The applicant further indicated he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions 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 Federal and State laws 8. Following this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to frequent incidents of a discreditable nature. The immediate commander remarked that the applicant had committed several acts of misconduct and had been counseled repeatedly without positive results. He was considered a detriment to unit discipline in that he flagrantly disregarded those infractions. He showed no potential for rehabilitation. 9. On 23 and 25 January 1980, his intermediate and senior commanders recommended approval of the discharge action. 10. On 28 February 1980, a board of officers convened at Headquarters, 7th Infantry Division, Fort Ord, to consider if the applicant should be eliminated from the service for misconduct. The board of officers found the applicant unacceptable for further retention in the military service because of frequent incidents of a discreditable nature with civil or military authorities. The board recommended his immediate discharge for misconduct with an under other than honorable conditions discharge. 11. On 1 April 1980, the separation/convening authority approved the findings and recommendation of the board of officers. The separation/convening authority approved the discharge action and ordered the applicant discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate. The applicant was discharged on 18 April 1980. 12. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with service characterized as under other than honorable conditions. He completed a total of 2 years, 1 month, and 5 days of net active service this period. 13. On 10 March 1982, the Army Discharge Review Board determined his discharge was proper and equitable and denied his petition for an upgrade. 14. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct. a. 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. b. Paragraph 3-7b provides 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 AND CONCLUSIONS: 1. The applicant's record of service shows a history of misconduct that included an extensive history of NJP and a history of negative counseling. He appears to have demonstrated little desire to adhere to Army standards and despite receiving considerable counseling and/or a rehabilitative efforts, he did not respond favorably. Accordingly, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. There is no independent evidence that corroborates his claim of racial tension in his unit. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service. His record of service was not satisfactory and is insufficiently meritorious to warrant an honorable or a general 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) AR20150008216 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008216 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1