BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000491 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: 8 June 2017 DOCKET NUMBER: AR20160000491 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: 8 June 2017 DOCKET NUMBER: AR20160000491 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 discharge from general under honorable conditions to honorable. 2. The applicant states he is making his request to better his life and obtain a better job. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) for the period ending 15 June 1978 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 30 September 1979 * NGB Form 23 (Retirement Credits Record) for the period 28 December 1978 through 30 September 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 December 1987 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. Having prior enlisted service in the Illinois Army National Guard, the applicant enlisted in the Regular Army on 1 October 1979. He held military occupational specialty 11B (Infantryman). 3. He was reassigned to Fort Ord, CA, on or about 28 July 1983. 4. He was promoted to sergeant (SGT)/ E-5 effective 3 February 1985. 5. On 11 August 1987, his Fort Ord commander initiated a bar to reenlistment action against him. a. He listed the following incidents as the basis for his action: * 7 April 1985 – speeding citation (12 miles per hour over the speed limit on post) * 4 June 1985 – driving under the influence of alcohol (DUI) with more than a .10 percent blood alcohol level * 17 February 1986 – reckless driving involving a traffic accident without injuries * 22 July 1986 – DUI with more than a .10 percent blood alcohol level b. On 3 September 1987, the bar to reenlistment was approved by the Commanding General, 7th Infantry Division. 6. On 21 September 1987, the applicant's commander advised him in writing that he was initiating elimination action against him under the provisions of paragraph 14-12b (Pattern of Misconduct) and paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). a. The stated bases were the following incidents: * 7 April 1985 – speeding * 4 June 1985 – DUI arrest by the California Highway Patrol * 20 July 1986 – arrested for "corporal injury to [his] spouse" and DUI b. The applicant acknowledged the notification that same date. 7. On 23 September 1987, he consulted legal counsel. He acknowledged counsel had advised him of the basis for the contemplated separation action, and that it was for a pattern of misconduct and commission of a serious offense. a. Counsel further advised him of the rights available to him, and of the effect of any action taken by him in waiving his rights. He: * requested to have his case considered by an administrative separation board, and elected to exercise his right to personally appear before the board * chose to be represented by counsel * opted not to submit statements in his own behalf * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * acknowledged he understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge that was less than honorable b. The applicant's counsel, confirmed he had advised the applicant of this separation action and its effects, the rights available, and the effect of a waiver of his rights. Counsel affirmed the applicant personally made the choices noted above. 8. On 26 October 1987, the applicant again consulted with counsel. Based on this consultation, he waived his right to have his case heard by an administrative separation board contingent on receiving a general discharge under honorable conditions. He otherwise made the same elections as he had done on 23 September 1987. 9. On 23 November 1987, the separation authority approved his request for a conditional waiver. He approved the proposed separation and directed the issuance of a General Discharge Certificate. 10. The applicant was discharged on 15 December 1987 under honorable conditions (general). His DD Form 214 shows he completed 8 years, 2 months, and 15 days of net active service. a. He was awarded or authorized the following: * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (3rd Award) * Noncommissioned Officer Professional Development Ribbon (1st Award) * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Hand Grenade Bar b. The separation authority was AR 635-200, paragraph 14-12c, and the narrative reason for separation was misconduct – commission of a serious offense. 11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 2-5 (Waiver) stated a Soldier could request to waive his/her right to a hearing before an administrative separation board contingent on receiving a specific characterization of service. Those Soldiers had to submit a request and commanders were required to ensure the Soldiers were not coerced into waiving his/her right to a board. The appropriate separation authority could either approve or disapprove the conditional waiver request. b. Paragraph 3-7a (Honorable Discharge) 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 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. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. The provisions encompassed the commission of a serious offense (to include abuse of illegal drugs). Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this chapter. DISCUSSION: 1. The applicant had numerous incidents of serious misconduct, as evidenced by DUIs and civilian arrest history. Accordingly, his chain of command barred him from reenlisting and then initiated separation against him. 2. The evidence of record appears to show his separation action was accomplished in compliance with applicable regulations, and there is no indication of procedural errors that would have jeopardized his rights. Further, it appears he essentially requested the characterization of service he received by virtue of submitting a conditional waiver, and his characterization of service was commensurate with his record of indiscipline. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000491 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000491 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2