BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018170 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 BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018170 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. BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018170 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 upgrade of his general under honorable conditions discharge to honorable and removal of the term "misconduct" from item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states, in effect, he was separated under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense). a. The infractions cited as the basis for his separation do not meet the criteria set forth in the regulation. The applicant asserts there was no "factual pattern of misconduct, as described in paragraph 14-12b (A Pattern of Misconduct)..." and, "consequently, there was not, nor could there have been, an adequate or conclusive determination ... that there existed any measurable pattern of misconduct." b. Additionally, the provisions of chapter 11 (Entry Level Performance and Conduct), paragraph 11-3 (Separation Policy), 11-4 (Counseling and Rehabilitation Requirements) and paragraphs "11.1-15" [sic, the regulation in effect at the time did not include a paragraph with this designation] were not followed since neither actual non-punitive counseling nor rehabilitation was offered or took place. He goes on to contend his career contributions and successes were not considered, and even evidence of minor infractions, as described in paragraph 14-12a (Minor Disciplinary Infractions), was not properly adjudicated. c. Based on this, he claims he should not have been issued a general discharge under honorable conditions. Nineteen years later, it is in the interest of justice to consider his application because the United States of America deserves his full ability to serve in any capacity, and without the hindrance of his current character of service. 3. The applicant provides the first page of a memorandum, dated 12 September 1996, and his DD Form 214, ending, ending 17 October 1996. 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 7 June 1993. He held military occupational specialty 11B (Infantryman). 3. He was assigned to Fort Shafter, HI, on or about 15 March 1995. 4. On 12 September 1996, his commander notified him in writing of his intent to initiate separation action under the provisions of AR 635-200, chapter 14, paragraph 14-12c. The notification essentially stated the applicant was recommended for separation with a general discharge under honorable conditions. a. The specific basis was that the applicant had accepted nonjudicial punishment, under Article 15, UCMJ, on two occasions: * 25 March 1996, disrespect toward a noncommissioned officer (NCO); included a suspended punishment, the suspension of which was vacated on 19 July 1996, for disrespect to an NCO and being drunk and disorderly * 1 August 1996, disrespect to an NCO, using provoking words, and being drunk and disorderly * numerous counselings for disobeying lawful orders, disrespect toward NCOs, and failure to meet weight standards b. The applicant acknowledged receipt of the notification the same date. 5. Also on 12 September 1996, the applicant signed a memorandum stating he had been advised by his commander (vice legal counsel) of the basis for the contemplated separation action, its effects, and of his rights, along with the impact of waiving those rights. a. He elected not to submit statements in his own behalf, waived consulting counsel, and indicated he understood he could: * expect to encounter substantial prejudice in civilian life if his character of service was anything less than honorable * apply to the Army Discharge Review Board (ADRB) or the ABCMR to request an upgrade of his discharge * withdraw his waivers up to the point his separation was approved b. His commander affirmed he had advised the applicant of the basis for separation, its effects, the rights available, and the effects of waiving his rights. He further stated the applicant had personally made the choices noted above. c. There was no indication the applicant was advised that a less than honorable discharge could make him ineligible for some benefits administered by the Department of Veterans Affairs and that he could be deprived of certain of his rights and benefits as a Veteran under State and Federal laws. 6. On 18 September 1996, the separation authority approved the commander's request and directed the applicant be issued a General Discharge Certificate. On 17 October 1996, he was discharged accordingly. 7. His DD Form 214 shows his character of service was under honorable conditions (general). His DD Form 214 further indicates he completed 3 years, 4 months, and 11 days of net active creditable service. a. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows: National Defense Service Medal; Army Service Ribbon; Sharpshooter Marksmanship Qualification Badge with Rifle Bar; Sharpshooter Marksmanship Qualification Badge with Grenade Bar; Parachutist Badge; and Air Assault Badge. b. The separation authority is AR 635-200, paragraph 14-12c; the separation code is JKQ (misconduct); the reentry code is "3" (waiver required); and the narrative reason for separation is "misconduct." 8. There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his character of service within that board’s 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, prescribed policies and procedures of enlisted administrative separations. a. Paragraph 3-7(a) of AR 635-200 provided that 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 be clearly inappropriate. b. Separation under chapter 11 was the result of unsatisfactory performance or unsatisfactory conduct (or both), and applied to Regular Army, Army National Guard, and U.S. Army Reserve Soldiers who were in an entry-level status, i.e., Soldiers who had completed no more than 180 days of creditable and continuous active duty at the time separation action was initiated. Discharges under chapter 11 were required to receive an uncharacterized character of service. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave. Action was to be taken to separate a member for misconduct when it was clearly established that rehabilitation was impractical or unlikely to succeed. Army policy stated a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this chapter; however, the discharge authority could direct an honorable or general discharge, if such was merited by the Soldier's overall record. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record shows the applicant's misconduct resulted in frequent counselings and the administration of NJP on two occasions. Based on this, his commander initiated separation action. 2. It appears his separation action met all requirements of law and regulation, and the evidence further indicates his rights were fully protected throughout the separation process. He was advised of his rights and that he could consult with legal counsel. Despite being given the opportunity to consult with counsel and present matters on his behalf, he elected to waive his rights and to proceed with his administrative separation. 3. The applicant asserts his misconduct did not meet the regulatory criteria for separation under paragraph 14-12c, AR 635-200. In support of his arguments, he adds references to other paragraphs of the regulation that do not apply to his separation action (i.e., paragraphs 11-3 and 11-4, which address entry-level separations; paragraph 14-12a, which deals with separations for having minor disciplinary infractions; and paragraph 14-12b, regarding a pattern of misconduct). a. Apart from argument, he offers no documentary evidence, prepared at or near his period of active service, that would show he did not commit the misconduct addressed in his separation action. b. If, at the time, he felt the separation action was either unjustified or based on false information, he would have had the opportunity to address his concerns with legal counsel. Instead, he elected to waive his right to counsel and, in effect, affirmed his concurrence with the separation action. 4. It appears the characterization of his service was commensurate with his record of indiscipline; he does not appear to have met the requirements associated with an honorable discharge. Based on this, there does not appear to be a basis for changing the narrative reason for separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018170 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018170 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2