IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150011960 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: AR20150011960 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: AR20150011960 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 under honorable conditions (general) discharge be upgraded to an honorable discharge. He further requests a waiver of the "two years of service" requirement for a Department of Veterans Affairs (VA) Certificate of Eligibility, necessary to obtain VA home loan financing. 2. The applicant states: * his service in the Army was exemplary * in 1987, the military police searched the parking lot of a local gay bar; his vehicle was discovered in the parking lot so he was brought in and questioned about his sexual orientation * once the company commander found out he was gay, he was outcast and persecuted * there were several gay members with him, including an officer from a neighboring company; however, he was the only one denounced because his vehicle was found in the parking lot * in light of the Supreme Court's recent ruling, he gets very angry about how he was treated, ostracized, and removed from service for "psychological reasons" 3. The applicant provides a letter from the VA. 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 is requesting a waiver of the "two years of service" requirement for a VA Certificate of Eligibility; however, establishing eligibility for programs and/or benefits administered by the VA is not within the purview of the ABCMR. Therefore, this issue will not be discussed further in this Record of Proceedings. 3. On 20 February 1986, the applicant enlisted in the Regular Army. 4. On 18 December 1986, the applicant was barred from reenlistment. The DA Form 4126-R (Bar to Reenlistment Certificate) shows he committed the following Uniform Code of Military Justice violations during one field training exercise: * absence without leave * missing movement * disrespecting a superior commissioned officer * disobeying a superior commissioned officer * dereliction in the performance of duties 5. On 12 January 1987, the applicant was found guilty by a summary court-martial of missing movement and disobeying a lawful order. 6. On 22 January 1987, the applicant was counseled by his immediate commander due to his summary court-martial conviction. The DA Form 4856-R (General Counseling Form) shows the purpose of the counseling was to inform him of the consequences of his disobedience, misbehavior, and substandard performance. His commander stated the following: "You have been counseled on numerous occasions concerning your continued failure to follow orders and instructions from superiors, poor duty performance, and unwillingness on your part to perform as a Soldier. Various methods of administrative nature have been utilized by the chain of command to try to get you to make the necessary corrections; thus far all have failed. Continued misbehavior on your part will no longer be tolerated and will subject you to consideration for elimination from the service." 7. On 4 March 1987, he was counseled for being disrespectful and insubordinate to his superior noncommissioned officer (NCO). 8. On 9 March 1987, his immediate commander recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance. His immediate commander stated the applicant had been very disruptive to the unit. He had displayed an apathetic attitude and a failure to adapt to military life. The commander also cited the following incidents as the basis for his recommendation: * court-martial conviction * missing from duty on 5 January 1987 * bar to reenlistment * disrespect to an NCO 9. On 9 March 1987, the applicant was notified by his commander that he was being considered for separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He was also advised of his right to consult with legal counsel and to submit statements in his own behalf. 10. On 10 March 1987, he was advised by legal counseled of the basis for his proposed separation action and its effect and of the rights available to him. He elected to submit a statement in his own behalf; however, the statement was not found in his available military records. 11. On 25 March 1987, the appropriate authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate. Accordingly, he was discharged on 7 April 1987, following his completion of 1 year, 1 month, and 18 days of active service. 12. There is no evidence in the applicant's military records that show he was a victim of harassment or unjust treatment/punishment that was based on his sexual orientation. 13. The ADRB denied the applicant's request for an upgrade of his discharge on 17 March 1988. 14. He provided a letter from the VA that shows he was denied a VA Certificate of Eligibility. REFERENCES: Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. 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. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions (general). DISCUSSION: 1. The applicant contends his under honorable conditions discharge should be upgraded because his service was exemplary and because he was outcast and persecuted due to his sexual orientation. 2. There is no evidence in his military records, and he provided no evidence, which supports his contention that he was mistreated based on his sexual orientation. 3. The evidence of record confirms his separation processing for unsatisfactory performance was accomplished in accordance with the applicable regulation. He was afforded the opportunity to consult with legal counsel and he was advised of the basis for his proposed separation action, its effect, and of the rights available to him. Therefore, all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. His disciplinary history includes a summary court-martial conviction and an extensive negative counseling record for acts of misconduct that include disrespect towards his superior commissioned and noncommissioned officers, disobeying lawful orders, and missing movement. This record of indiscipline clearly diminished the overall quality of his service below that meriting a fully honorable discharge. As a result, his discharge accurately reflects the overall quality of his service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011960 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011960 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2