IN THE CASE OF BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150011573 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: 23 June 2016 DOCKET NUMBER: AR20150011573 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: 23 June 2016 DOCKET NUMBER: AR20150011573 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, in effect, an upgrade of his under honorable conditions (general) discharge. 2. The applicant states he earned the Expert Infantryman Badge, which includes qualifying expert in rifle marksmanship. He was given an under honorable conditions (general) discharge for unsatisfactory performance even though he excelled in his job performance duties. At the time of out processing, the clerk did not have his file information in hand with updated information and proceeded accordingly. He did not think that it was done in a purposeful manner, just did not have the most up to date information. He was at a very young age and was heavily persuaded by his platoon leader to give up and was told that he would never advance while he was assigned to the unit. The unit was a cohort unit and there was no transfer option available. The platoon leader advised him that even if a reenlistment was done, that he would still be assigned to his cohort unit. To even be considered to try out for the Expert Infantryman Badge, one has to have a character rating of excellent. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Permanent Orders (PO) awarding him the Expert Infantryman Badge 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 6 November 1984 and he held military occupational specialty 11B (Infantryman). 3. His records contain PO Number 13-42, issued by Headquarters, 2nd Armored Division, Fort Hood, TX, on 22 January 1986, awarding him the Expert Infantryman Badge. 4. He served in Germany from 30 June 1986 to on or about 11 November 1986. He was assigned to Company B, 1st Battalion, 41st Infantry Regiment, 2nd Armored Division. 5. On 5 February 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language to a superior noncommissioned officer. His punishment consisted of a suspended reduction to E-2, extra duty, and restriction. 6. On 7 May 1986, he again accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from a superior commissioned officer. 7. On 5 November 1986, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsatisfactory performance. The immediate commander recommended the issuance of a general discharge. He opined that the applicant: * would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * rehabilitative efforts would be fruitless due to the applicant's blatant disrespect toward authority * received three Article 15s for being disrespectful towards superiors * demonstrated total disregard to authority and he had no respect for his superiors 8. On 30 September 1986, the applicant acknowledged receipt of the commander's notification of intention to separate him and he consulted with legal counsel. He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive, and its effect on future enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by an administrative separation board and personal appearance before an administrative separation board (he was not eligible for an administrative separation board because he had less than 6 years of total service). He further acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * if he was issued an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran * he could also encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge * he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; however, an act of consideration did not mean his discharge would be upgraded 9. On 30 September 1986, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance. The immediate commander recommended issuance of a general discharge. 10. On 2 November 1986, the separation authority approved the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance and directed he be furnished a General Discharge Certificate. Accordingly, the applicant was discharged on 21 November 1986. 11. The DD Form 214 he was issued shows he was discharged on 21 November 1986 under the provisions of chapter 13 of Army Regulation 635-200 with a characterization of service of under honorable conditions (general). He completed a total of 2 years and 16 days of creditable military service. 12. There is no indication he petitioned the ADRB for a review of his discharge within that board's 15 year statute of limitations. REFERENCE: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander’s judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 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: 1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his history of NJP and failure to respect authority and superiors. He displayed substandard performance and appears to have been unable to conform to the military or accept his responsibility to meet Army standards. 2. It appears he was given ample time to comply with the standards through counseling but he was unable to conform to the standards. His substandard performance, which demonstrated a lack of self-discipline and lack of initiative, appears to have left no other option but to discharge him. Accordingly, his immediate commander initiated separation action against him. 3. His award of the Expert Infantryman Badge has no bearing on the behavior that led to his discharge while stationed in Germany. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There is no evidence of error in his separation processing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011573 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011573 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2