IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017239 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: 13 April 2017 DOCKET NUMBER: AR20150017239 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: 13 April 2017 DOCKET NUMBER: AR20150017239 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. 2. The applicant states: * he was getting into many fights with local men over his wife * he should have known better but they were coming after him * he actually asked to be discharged with 6 days left on active duty * he was trying to get discharged before his wife came back from out of town so he could just leave her * he regrets ruining his career because he was a very good Soldier; it was his after duty problems that brought him down * it has been over 20 years and he is a productive member of society * he still has the discipline instilled in him by the military and he uses his training in everyday life 3. The applicant provides no additional evidence in support of his request. 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 29 December 1981. 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 5 September 1984, for failing to go at the time prescribed to his appointed place of duty * 29 November 1984, for wrongful use of marijuana * 13 August 1985, for failing to go at the time prescribed to his appointed place of duty, being disrespectful in deportment towards his superior chief warrant officer, and disobeying a lawful order issued by his first sergeant 4. The applicant's record contains several DA Forms 4856-R (General Counseling Form), with dates ranging from 11 June 1984 to 17 July 1985, which show he was counseled for several acts of misconduct including his lateness for duty on several occasions, being out of uniform, and failing to report for duty on various occasions. 5. The applicant's unit commander advised him on 22 October 1985, that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, based on a pattern of misconduct. The reasons cited by the commander for the proposed separation action were the applicant's multiple instances of misconduct which were violations of the accepted standards of personal conduct found in the UCMJ and prejudicial to good order and discipline. He was advised of his right to consult with legal counsel, submit statements in his own behalf, and waive his rights in writing. He acknowledged receipt by endorsement. 6. The applicant consulted with legal counsel on 24 October 1985, and was advised of the basis for the contemplated separation action for misconduct, its effects, the rights available to him, and the effect of any action taken by him in waving his rights. He elected to submit a statement in his own behalf in which he requested not to be discharged under the provisions of Army Regulation 635-220, chapter 14, for misconduct, because his expiration of term of service was 28 December 1985. 7. The applicant acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He further acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 8. The separation authority approved the recommendation for separation on 29 October 1985, under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate. The applicant was discharged accordingly on 6 November 1985. 9. There is no evidence the applicant applied to the ADRB for an upgrade of his discharge. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct consisting solely of minor military disciplinary infractions, a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. DISCUSSION: 1. The evidence of record shows the applicant accepted NJP on three occasions for failing to go to his appointed place of duty, wrongful use of marijuana, disrespect towards his superior chief warrant officer, and for disobeying a lawful order issued by his first sergeant. The evidence also shows he was counseled on numerous occasions for several acts of misconduct. 2. Based on his repeated acts of misconduct, it appears his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also clearly diminished the quality of his service below that meriting a fully honorable discharge. 3. The evidence confirms his separation processing for a pattern of misconduct was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. The applicant has failed to provide evidence demonstrating that the command's actions and/or the characterization of his service were in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017239 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017239 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2