BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006722 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 May 2018 DOCKET NUMBER: AR20160006722 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 under honorable conditions (general) discharge be upgraded to an honorable discharge, and a personal appearance before the Board. 2. The applicant, in effect, states he requests an honorable discharge. At the time of his discharge, he was having personal issues and was not able to perform at his best for the service. For many years, he was under the impression his discharge would be automatically upgraded to honorable; however, he knows now that is not the fact. He asks that the Board give him an honorable discharge, which would provide him benefits from the Department of Veterans Affairs (VA). This would help him to be a productive citizen and veteran. He gave his best during the seven years he served but for a short time, he was overcome with personal issues that resulted in his performance being short of outstanding. 3. The applicant provides no additional evidence in support of his request. 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 9 December 1985. He completed his initial entry training and was awarded military occupational specialty 13F (Fire Support Specialist). 3. The applicant advanced in rank and was promoted to the rank/grade of private first class (PFC)/E-3 on 1 October 1986. He was demoted to the rank/grade of PVT/E-2 on 17 November 1986; the circumstances surrounding the reduction are not available for review. 4. The applicant was promoted to the rank/grade of PFC/E-3 on 1 August 1987 and specialist (SPC)/E-4 on 1 June 1988. 5. The applicant's DA Form 2-1 (Enlisted Personnel Qualification Record – Part II) shows he was reported absent without leave (AWOL) from on or about 25 August 1990 through on or about 28 August 1990. His DA Form 2-1 also shows he was demoted to the rank/grade of PFC on 7 April 1991. 6. A DA Form 2627 (Record of Proceedings Under Article 15, Uniformed Code of Military Justice (UCMJ)) shows the applicant received non-judicial punishment (NJP) on 15 June 1992, under the provisions of Article 15 of the UCMJ, for violating of Article 86 of the UCMJ; specifically, for failing to repair on or about 20 April and 30 April 1992. 7. The applicant received a mental status evaluation on 21 October 1992. The examiner noted: * he met medical retention standards * there was no psychiatric disease or defect warranting disposition through medical channels * he was mentally responsible, able to distinguish right from wrong, and adhere to the right * he was cleared for any administrative action deemed appropriate by command 8. The applicant’s company commander notified him that he was initiating actions to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance. The company commander did not cite specific details in support of the separation action within the notification. The applicant acknowledged receipt of the proposed separation notification on 16 December 1992. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. 9. The separation approval authority waived the requirement for a rehabilitative transfer and directed the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13, prior to his expiration term of service date. He further directed that the applicant be discharged and not transferred to the Individual Ready Reserve and that he be furnished a General Discharge Certificate. 10. The applicant was discharged on 5 January 1993, in the rank/grade of PFC/E-3. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and his character of service was under honorable conditions (general). His DD Form 214 shows he was awarded, among others awards and decorations, the Army Achievement Medal and the Army Good Conduct Medal (2nd Award). 11. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 13 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. DISCUSSION: 1. The applicant requests an upgrade of his under honorable conditions discharge. 2. The applicant's record shows he was reduced in rank on several occasions, was reported AWOL, and received NJP under the UCMJ. It appears additional disciplinary concerns continued to occur that resulted in his unit commander's decision to initiate separation actions against him for unsatisfactory performance. The separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13. 3. An honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions (general) characterization of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. In this case, the separation authority determined that the applicant's service was not sufficiently meritorious to merit an honorable characterization of service. Discharges under this regulatory provision are involuntary. 4. The applicant contends his unspecified personal issues affected his performance. 5. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence is sufficient to render a fair and equitable decision at this time. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006722 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006722 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006722 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2