IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150012359 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 July 2016 DOCKET NUMBER: AR20150012359 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 July 2016 DOCKET NUMBER: AR20150012359 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. 2. The applicant states, in effect, he received punishment on several occasions under Article 15 (Nonjudicial Punishment (NJP)) of the Uniform Code of Military Justice (UCMJ). He states the NJP and separation action were unjust, biased, and he was not afforded due process. He describes four specific incidents, as follows: a. His flight to return to Fort Stewart, GA was delayed. He called his company commander and informed him and the commander told him "it was fine." When he returned to his unit a few days later NJP was taken against him. b. While serving in Germany he was accused of calling his girlfriend an inappropriate name. The matter went to trial and she admitted that he did not call her an inappropriate name; however, NJP was imposed against him. c. He should have been allowed to consult with a Judge Advocate General lawyer about filing charges (or a complaint) against his platoon sergeant. However, the platoon sergeant (a noncommissioned officer (NCO)), instructed him to go out to the field and set up some antennas. The NCO also told him there was no need to bring his field gear because he would only be out in the field for about 40 minutes. When he got out to the site, another NCO told him he would be in the field for 7 days. He received NJP related to this matter. d. He states that he was on crutches after he had gotten out of the hospital from foot surgery. The medical doctor instructed him not to perform duty for eight days. His platoon sergeant stated he did not care what the doctor said. The NCO instructed him to take a room full of 12-foot long boards that were on the third floor of a building to a location on the other side of the installation. After performing the task, the NCO instructed the applicant to take the boards back to the third floor of the building he had originally taken them from. He asserts that he was mentally and physically abused by the NCO. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 (RA) on 24 June 1980 for a period of 3 years. Upon completion of training he was awarded military occupational specialty 05C (Radio Operator). 3. On 28 October 1980, he was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 70th Armor (2/70 AR), Fort Stewart, GA. 4. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 1 June 1981, shows the Commander, HHC, 2/70 AR, notified the applicant of his intent to impose NJP against him for violation of Article 86, UCMJ, for being absent from his unit from 30 May to 1 June 1981. a. The applicant was advised of his right to consult with a lawyer and that he had 72 hours to decide what he wanted to do. b. The applicant did not request a hearing; however, he indicated that matters in defense, mitigation, and/or extenuation would be presented. c. After considering all matters presented in defense, mitigation, and extenuation, the punishment imposed by the commander was reduction to the rank/grade of private (PV2)/E-2 (suspended for 30 days), a forfeiture of 3 days' pay (suspended for 30 days), and 14 days of extra duty. d. The applicant indicated (with his signature) that he did not appeal the NJP. 5. On 9 March 1982, he was assigned to Headquarters and Headquarters Battery (HHB), Division Artillery (DIVARTY), 1st Armored Division, Germany. 6. A DA Form 2627, dated 1 June 1982, shows the Commander, HHB, DIVARTY, notified the applicant of his intent to impose NJP against him for violation of Article 117, UCMJ, for wrongfully using provoking words toward a female Soldier. a. The applicant was advised of his right to consult with a lawyer and that he had 72 hours to decide what he wanted to do. b. The applicant requested an open hearing to present matters (in person) in defense, mitigation, and/or extenuation. c. Following the open hearing, the punishment imposed by the commander was reduction to the rank/grade of PV2/E-2 (suspended until 7 September 1982), a forfeiture of $144 pay for 1 month, 14 days of extra duty, and 14 days of restriction to the limits of the billets, place of duty, chapel, and dining facility. d. The applicant indicated (with his signature) that he appealed the NJP. e. On 24 June 1982, after consideration of all matters presented in the appeal, the Commander, 6th Battalion, 14th Field Artillery (6/14 FA), denied the applicant's appeal. The applicant indicated that he had seen the action taken on his appeal. f. On 25 June 1982, the applicant was found to be in possession of drug paraphernalia and the applicant's commander vacated the suspension of the punishment of reduction to the rank of PV2/E-2 and ordered it executed. 7. On 11 June 1982, the applicant's company commander notified him that he was initiating action to discharge him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Separation for Convenience of the Government), based on failure to maintain acceptable standards for retention. a. The specific reasons for the proposed action were the applicant's inability to follow instructions and to adapt to disciplined standards of performance required for military service. The commander noted that the applicant had received NJP since arriving in the unit and he had been regularly counseled, but he failed to show any improvement. b. The applicant was advised of his rights and of the separation procedures involved. 8. On 22 June 1982, the applicant acknowledged with his signature that he had been provided the opportunity consulted with legal counsel and he had been advised of the reasons for separation and the rights available to him. a. He acknowledged that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He also acknowledged that he would not be permitted to apply for enlistment in the U.S. Army within 2 years of separation. b. He indicated that he would submit statements in his own behalf; however, the separation action does not contain any statements that were provided in his behalf. c. The applicant placed his signature on the notification document. d. The commander recommended approval of the separation action. 9. A DA Form 2627, dated 25 June 1982, shows the Commander, HHB, DIVARTY, notified the applicant of his intent to impose NJP against him for violation of: * Article 92, UCMJ, for wrongfully having in his possession drug paraphernalia * Article 134, UCMJ, for wrongfully having in his possession drug paraphernalia containing residue of marijuana. 10. The applicant was advised of his right to consult with a lawyer and that he had 72 hours to decide what he wanted to do. a. The applicant did not request a hearing; however, he indicated that matters in defense, mitigation, and/or extenuation would be presented. b. After considering all matters presented in defense, mitigation, and extenuation, the punishment imposed by the commander was reduction to the rank/grade of private (PV1)/E-1, a forfeiture of $50 pay for 1 month, 14 days of extra duty, and 14 days of restriction to the limits of the billets, place of duty, chapel, and dining facility. c. The applicant indicated (with his signature) that he appealed the NJP. d. On 11 July 1982, after consideration of all matters presented in the appeal, the Commander, 6/14 FA, denied the applicant's appeal. The applicant refused to sign the acknowledgement that he had seen the action taken on his appeal. e. On 18 August 1982, the applicant's company commander set aside the punishment of reduction in rank/grade to PV1/E-1 and restored all rights, privileges, and property affected by the order. 11. On 26 August, 1982, the Commander, 6/14 FA, approved a bar to reenlistment against the applicant based on his record of NJP, non-payment of just debt, a documented history of unreliability, failure to be at his appointed place of duty, and inability to comply with instructions. 12. On 26 August 1982, the separation authority approved the recommendation for discharge of the applicant and directed that he be issued a General Discharge Certificate. 13. The applicant's DD Form 214 shows he was discharged on 20 September 1982 with a general, under honorable conditions discharge under the provisions of AR 635-200, paragraph 5-31 (Expeditious Discharge Program (EDP)), for failure to maintain acceptable standards for retention. He had completed 2 years, 2 months, and 25 days of active service this period. 14. The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 28 October 1983, the ADRB notified the applicant that it determined the reason for his discharge and the character of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. REFERENCES: AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5, paragraph 5-31, provides policy and procedures for separating individuals under the EDP. The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential. Members separated under the EDP could be awarded a character of service of honorable or under honorable conditions, as appropriate. b. Chapter 3, 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 applicant contends, in effect, that his general discharge should be upgraded because the NJP he received and the separation action were unjust, biased, and he was not afforded due process. 2. The evidence of record shows NJP was imposed against the applicant on three occasions. a. On all three occasions the applicant was advised of his right to consult with a lawyer and he was afforded 72 hours to decide what he wanted to do regarding the proposed NJP. b. On the first and third occasions of NJP, he did not request a hearing; he elected to submit matters to the commander in defense, mitigation, and/or extenuation. On the second occasion of NJP, he requested an open hearing to present matters (in person) in defense, mitigation, and/or extenuation. c. On the occasion of the first NJP, the applicant did not appeal. On the other two occasions of NJP, he appealed. In both instances, the appeal authority denied the applicant's appeal. However, with regard to the third NJP imposed against the applicant, his company commander set aside the applicant’s punishment of reduction to the rank/grade of PV1/E-1 and restored all rights, privileges, and property affected by the order. d. The foregoing evidence of record fails to support the applicant's contention that the NJP was unjust, biased, and/or that he was not afforded due process. 3. The evidence of record shows the applicant was advised of his rights and the separation procedures involved, and he acknowledged he had been afforded the opportunity to consult with consulting counsel. He also acknowledged that he understood the basis for the contemplated separation action, its effects, and the rights available to him. In addition, he indicated that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. The foregoing evidence of record fails to support the applicant's contention that the separation action was unjust, biased, and/or that he was not afforded due process. 4. The applicant's discharge under the provisions of AR 635-200, chapter 5, under the EDP for failing to maintain acceptable standards for retention was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. Considering all the facts of this case, the narrative reason for separation and characterization of service were both appropriate and equitable. 5. The applicant was discharged based on his failure to maintain acceptable standards for retention. a. The evidence of record shows he received NJP on (at least) two occasions and he was regularly counseled regarding his behavior, but he failed to show any improvement. b. He was reduced to PV2/E-2 and failed to complete his 3-year active duty obligation. c. Based on the available evidence, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012359 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012359 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2