BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004663 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: 14 November 2017 DOCKET NUMBER: AR20160004663 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: 14 November 2017 DOCKET NUMBER: AR20160004663 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 general discharge to an honorable discharge and a personal appearance hearing. 2. The applicant states when he first enlisted he was young and dumb and believed what his supervisors told him. When he was voluntarily discharged from the Army, he was told by his superiors that he would be given an honorable discharge; however, he was actually discharged with a general discharge. If he had known this at the time, he would have fulfilled his enlistment. a. He believes that he should be considered for an upgrade due to being young and dumb. Although he made a couple of bad choices, he took his punishment without asking any questions. As an enlisted member, he excelled and proved he was an exceptional performer. He trusted his superiors when they told him what type of discharge he would get. b. He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of his honorable discharge order from the U.S. Army Reserve (USAR). This correction is very important to him, since after all these years, his general discharge has held him back from a lot of things in his life, including school, a home, and other organizations that he has tried to be a part of. 3. The applicant provides a copy of his DD Form 214 and Orders D-04-217607, dated 23 April 2002. 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. On 27 January 1994, at the age of 18, the applicant enlisted in the Regular Army for a period of 4 years. 3. A DA Form 4187-E (Personnel Action) shows the applicant was absent without leave (AWOL) on 29 November 1994 and was pending non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for drinking under the age of twenty-one. 4. A DA Form 4187-E shows the applicant's duty status changed from AWOL to present for duty effective 1 December 1994. 5. On 14 February 1995, the applicant’s unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance. The unit commander cited the applicant's failures to repair, drinking under age, and letters of indebtedness as the primary reason for this proposed action. He also informed the applicant that he was recommending that he receive a general discharge. The unit commander continued by advising the applicant of his right to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing. He acknowledged receipt of the unit commander's notification on the same day. 6. On 15 February 1995, the applicant acknowledged that his consulting counsel advised him of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-200, chapter 13, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He elected not to submit a statement in his own behalf and waived his right to representation by counsel. 7. On 15 February 1995, the unit commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13. 8. On 15 February 1995, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate. 9. A DA Form 4187-E shows civil authorities apprehended and confined the applicant on 24 February 1995. 10. A DA Form 4187-E shows the applicant was released from civil confinement to military control on Fort Stewart, GA, on 28 February 1995. 11. On 28 February 1995, the applicant was discharged and transferred to the USAR after completing 1 year and 1 month of credible military service. His DD Form 214 shows he was separated under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, and he received an under honorable conditions (general) character of service. His DD Form 214 also show he had lost time from "19940224-19940227." 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. The applicant provides a copy of his discharge orders from the USAR showing he received an honorable discharge on 23 April 2002 upon completion of his service obligation. REFERENCES: 1. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. b. Paragraph 3-7a provides that 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. 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Additionally, the ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. Applicants may be represented by counsel at their own expense. DISCUSSION: 1. The applicant contends the Board should upgrade his under honorable conditions (general) discharge to an honorable discharge. 2. The applicant was over 18 years of age at the time of his offenses. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed their military service. 3. The record is void of evidence showing he voluntarily separated from the Army or that he was promised an honorable discharge. In fact, his records show his unit commander cited the reasons for his separation as failures to repair, drinking under age, and letters of indebtedness. Therefore, he was involuntarily discharged in accordance with Army Regulation 635-200, chapter 13. 4. The applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service. The reason for discharge and the characterization of service were both proper and equitable. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. The Director or the ABCMR may grant a formal hearing whenever justice requires. In this case, the evidence of record and independent evidence provided by the applicant and his counsel are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004663 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004663 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2