BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160000629 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: 21 September 2017 DOCKET NUMBER: AR20160000629 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: 21 September 2017 DOCKET NUMBER: AR20160000629 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 under other than honorable conditions discharge to an honorable discharge (HD). 2. The applicant states: * he was told he could get out of the Army early because he completed more than 2 years of service * he was accused of using weed and took a urine test that proved he did not use this substance * he was depressed due to the false accusations made against him resulting in an under other than honorable conditions discharge * he was told President Clinton was reducing the size of the military and he could qualify for an HD if he got out early * he would not have left the Army if he knew he would receive an under other than honorable conditions discharge * he was not told he was being discharged because of his sexual orientation 3. The applicant provides no supporting documents. 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 17 August 1988. Following initial entry training, on or about 14 April 1989, he was assigned to a unit at Fort Hood, Texas. 3. His record shows he was formally counseled eighteen times during the period 22 May 1989 to 1 June 1990 for numerous disciplinary infractions that include: * driving without a proper license (twice) * failing his room inspection * wearing the wrong uniform * failure to obey orders on four separate occasions * failing to be at the appointed place of duty at the appointed time (twice) * missing formation on four separate occasions * missing a medical or dental appointment (twice) * making a false statement * damaging government property * civilian arrest/jail for public intoxication 4. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on three occasions: * 11 October 1989 – making a false statement * 22 March 1990 – failing to go at the time prescribed to his appointed place of duty (twice) * 28 June 1990 – willfully damaging government property and failing to go at the time prescribed to his appointed place of duty 5. On 18 July 1990, the applicant underwent a mental status evaluation that showed the following: * his behavior and thought content were normal * he was fully alert and oriented * his mood was unremarkable * his thinking process was clear * his memory was good * he was mentally responsible * he met retention requirements * he had the mental capacity to understand and participate in separation proceedings 6. On 31 July 1990, his commander notified him, in writing, he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, due to a pattern of misconduct. 7. On 1 August 1990, 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. 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: * declined to have his case considered by an administrative separation board, and waived his right to personally appear before the board * elected not to submit a statement 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 under other than honorable conditions * affirmed that he was retaining a copy of this statement b. The applicant's counsel confirmed she advised the applicant of this separation action and its effects, the rights available to him, and the effect of a waiver of his rights. Counsel affirmed the applicant personally made the choices noted above. 8. On 16 August 1990, the separation authority approved the applicant's discharge action and directed the issuance of an under other than honorable conditions discharge. The applicant was discharged accordingly on 31 August 1990. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. His service was characterized as under other than honorable conditions. 10. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 14-12b, in effect at the time, states members are subject to separation under this provision when they have a pattern of misconduct involving: * acts of discreditable involvement with civil or military authorities * conduct which is prejudicial to good order and discipline b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The evidence of record shows the applicant displayed a pattern of misconduct. Accordingly, his chain of command initiated separation action against him. 2. He was advised of his rights and consulted with legal counsel (a Judge Advocate General officer). All requirements of law and regulation appear to have been met and the applicant’s rights were fully protected throughout the separation process. The separation authority determined his service had not risen to the level required for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000629 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000629 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2