IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009640 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 IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009640 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. IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009640 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 his discharge under other than honorable conditions be upgraded. 2. The applicant states, in effect, he attempted to be all he could be as a mechanic. He was placed in a military police (MP) unit and according to the first sergeant's (1SG) standards he was not accepted or wanted. The 1SG had him in his sights and put him to the test. He failed as an MP. His abilities as a mechanic were strong. He was young and foolish and now regrets his errors. He is now older and wiser and believes he is worthy of help in making better decisions from here on. 3. The applicant provides no additional 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. On 16 November 1976, at the age of 20, he enlisted in the Regular Army for 4 years. He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic). On 7 April 1977, he was assigned to the 1st MP Company at Fort Riley, KS as a wheel vehicle mechanic. 3. On 19 July 1977, he received nonjudicial punishment (NJP) for operating a motorcycle on the parade field, an area normally reserved for pedestrian use. He appealed his NJP and on 25 July 1977 his appeal was denied. 4. On 23 November 1977, he received NJP for failing to go to formation at the time prescribed. 5. On 2 June 1978, he received a letter of reprimand from his unit commander for having in his possession one roach clip, one plastic box, one screw cap device, and one smoking device which contained marijuana residue. Due to a legal technicality no charges were processed at that time. 6. On 13 June 1978, he received NJP for: * failing to insure his vehicle was properly maintained before it was dispatched * operating a passenger car in a reckless manner by driving at a high rate of speed near the main post housing area 7. He appealed his NJP and on 14 June 1978 his appeal was denied. 8. On 7 December 1978, he was tried before a special court-martial. a. He pled guilty and was found guilty of: * being absent without leave (AWOL) from on or about 11 September to 11 October 1978 * behaving with disrespect toward a commissioned officer * breaking restriction on 20 October 1978 b. He pled not guilty but was found guilty of being AWOL from on or about 20 October to 17 November 1978. c. His sentence consisted of: * reduction to private E-1 * a forfeiture of $200 pay for 5 months * confinement at hard labor for 5 months 9. On 29 December 1978, the unexecuted portion of his sentence to confinement at hard labor for 5 months was suspended until 30 April 1979. 10. The applicant received NJP on: * 9 January 1979, for failing to go at the time prescribed to his appointed place of duty * 11 January 1979, for breaking restriction 11. On 5 February 1979, he received NJP for participating in a breach of the peace by wrongfully engaging in a fist fight. He appealed his NJP. The final disposition of his appeal is not shown in the available record. 12. On 28 February 1979, he received NJP for: * two specifications of breaking restriction * failing to go at the time prescribed to his appointed place of duty 13. He appealed his NJP and on 1 March 1979 his appeal was denied. 14. On 2 March 1979, the social work officer, U.S. Army Retraining Brigade, Fort Riley, KS certified the applicant was evaluated on 22 February 1979 by the Community Mental Health Activity (CMHA) psychiatrist and on 19 February 1979 by the unit social worker. a. There appeared to be no evidence of psychosis, neurosis or other disorders which would require referral for psychiatric treatment. It was believed the applicant would not adjust to the military setting, his potential for return to duty was minimal, and further rehabilitative efforts would prove non-productive. b. The psychiatrist's impression was the applicant had a passive-aggressive personality - chronic, severe from a lifelong poor adjustment to social and authority figures. He was unable to adapt or rehabilitate. c. The applicant was recommended for separation under the provisions of chapter 13 of Army Regulation 635-200 due to a personality disorder. 15. On 15 March 1979, the applicant was again evaluated by the CMHA psychiatrist. a. The applicant represented no active suicidal risk but due to excessive impulsive and passive-aggressive tendency, may precipitously hurt himself when forced with frustrating situation, including confinement. b. The applicant was previously recommended for separation under chapter 13 of Army Regulation 635-200 as unsuitable. However, he had since gone AWOL and expressed suicidal ideations and he was pending pre-discharge confinement. c. The psychiatrist recommended that he be discharged under chapter 14 for misconduct as opposed to confinement as the applicant had a personality disorder that was not amenable to treatment or rehabilitation efforts or punishment. d. A chapter 13 discharge for unsuitability was the ideal route of discharge. However, his repeated disciplinary problems made him a candidate for a misconduct discharge. The risk of personal harm or suicide was enough to warrant immediate separation rather than confinement. The psychiatrist recommended any type of discharge as soon as possible. 16. On 20 March 1979, the suspension of the unexecuted portion of his sentence to confinement at hard labor for 5 months was vacated. 17. On 22 March 1979, his unit commander recommended that he be discharged from the service for misconduct because of frequent incidents of a discreditable nature. Discharge for unsuitability was not deemed appropriate because the applicant's behavior was not due to an inability to satisfactorily perform within the meaning of unsuitability. a. The applicant was sent to the Retraining Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation. b. The applicant demonstrated little desire for retuning to duty. He had received counseling by members of the leadership team and members of the professional staff. c. In the commander's opinion, the applicant possessed the mental and physical ability necessary to be an effective Soldier. However, his record and his failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service. 18. On 28 March 1979, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct. The applicant waived consideration by a board of officers and waived a personal appearance. The applicant stated he was not submitting statements in his own behalf and he waived counsel. 19. The applicant acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. The applicant also acknowledged as a result of the issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both federal and state laws and he may expect to encounter substantial prejudice in civilian life. 20. The appropriate authority directed the applicant be discharged under the provisions of chapter 14 of Army Regulation 635-200, waived the requirement for rehabilitative transfer, and directed the applicant be furnished an under other than honorable conditions discharge. 21. On 20 July 1979, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent incidents of a discreditable nature. He had completed 2 years and 21 days of net active service that was characterized as under other than honorable conditions. He had 224 days of time lost. 22. There is no indication he applied to the ADRB for an upgrade of his discharge within the ADRB's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. b. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Included in the categories for discharge was frequent involvement in incidents of a discreditable nature with civil or military authorities. Action was to 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 considered appropriate. c. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. d. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant contends his 1SG was unfair to him. However, he has provided no substantive evidence to support his contention. 2. His age at time of enlistment was noted. However, many Soldiers enlisted at a younger age and went on to complete their enlistments and receive honorable discharges. 3. The applicant's commander determined that discharge for unsuitability was not deemed appropriate because the applicant's behavior was not due to an inability to satisfactorily perform within the meaning of unsuitability. 4. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. He was properly and equitably discharged in accordance with regulations in effect. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The applicant's records contain no evidence of procedural or other errors that would have jeopardized his rights. 5. The applicant received a letter of reprimand, NJP on seven occasions, a conviction by a special court-martial, and he had 224 days of lost time. His service was unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009640 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009640 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2