IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160003602 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: 28 November 2017 DOCKET NUMBER: AR20160003602 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: 28 November 2017 DOCKET NUMBER: AR20160003602 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 character of service be changed from under honorable conditions (general) to honorable. 2. The applicant states he was told when processing out that his type of discharge would automatically upgrade to honorable six months after his discharge. 3. The applicant provides 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 on 28 July 1980. 3. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on: * 16 December 1982, for unlawfully striking a sergeant with his fist * 17 February 1983, for wrongfully having in his possession some amount of marijuana and for being drunk and disorderly 4. His service record shows he received adverse counseling on two occasions for missing formations, failing to pass Army Physical Fitness Test, and receiving an Article 15 for violation of Article 128 (Assault). 5. On 25 February 1983, the applicant’s commander notified him of his intent to recommend him for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12b by reason of misconduct - pattern of misconduct. 6. On 1 March 1983, he acknowledged receipt of the commander’s intent to separate him for misconduct. He consulted with legal counsel and was advised of the basis for the contemplated separation action notification of separation action and its effects, the rights available to him. He requested consideration of his case by a board of officers, requested a personal appearance before a board of officers, submitted a statement own his own behalf and acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. 7. In his statement, dated 7 March 1983, he admitted that he had some problems in the past but there was never any real trouble like other people he knew. He asked for one more chance to prove his performance since he only had 5 more months in the service. He received all kinds of awards for performing his job better than most noncommissioned officers. He sends most of his money home to his mother and brother. He would like to finish his enlistment. 8. On 10 March 1983, the separation authority approved the applicant’s discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct, waived further rehabilitation efforts and directed the issuance of a General Discharge Certificate. 9. His DD Form 214 shows he was discharged on 17 March 1983 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct with an under honorable conditions (general) character of service. It also shows he completed 2 years, 7 months, and 20 days of total active military service. 10. His service record does not indicate he applied to the Army Discharge Review Board (ADRB) 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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. An under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. b. 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. DISCUSSION: 1. The U.S. Army does not have nor has it ever had an automatic discharge upgrade policy. Applicants have the option of applying to the ADRB within that board's 15-year statute of limitations or to the ABCMR. 2. The applicant's service record shows he received nonjudicial punishment for unlawfully striking a sergeant with his fist, wrongfully having in his possession some amount of marijuana, and for being drunk and disorderly. Based on his pattern of misconduct, he was recommended for discharge, and the recommendation was approved. The available records show no evidence of error in his discharge processing. 3. The separation authority determined the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant 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) AR20160003602 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003602 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2