BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160006842 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 I BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160006842 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. 2. The applicant states he was a young man who made some bad decisions; however, he has grown to be a much better man and father. He wishes that part of his life would quit haunting him; he apologizes to his country and his fellow Soldiers. He lost the GI Bill and to this day he is losing job opportunities because of his past. Please show him that he can be forgiven by upgrading his discharge so he may be able to better the lives of himself and his kids. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 July 1988. 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 U.S. Army Reserve (USAR) on 14 June 1986. He entered a period of active duty for training (ADT) on 9 July 1986 for the purpose of completing his initial entry training (IET). He completed IET and was released from ADT on 6 November 1986. 3. The applicant enlisted in the Regular Army on 28 April 1987 at 21 years of age. 4. DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) show the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15, UCMJ, on the following occasions: * on 12 August 1987, for disorderly conduct on or about 3 May 1987 * on 25 November 1987, for failure to repair and for disobeying a lawful order, both occurring on or about 31 October 1987 5. A DA Form 3975 (Military Police Report), dated 4 May 1988, and an attached Fort Hood Form 1 (Driving While Intoxicated (DWI) Information Sheet) shows the applicant was arrested on 30 April 1988. He was arrested for suspicion of DWI; he had a blood alcohol concentration (BAC) level of .21 percent. 6. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation on 20 May 1988. The medical examiner determined he met retention standards, was mentally responsible, and had the mental capacity to understand and participate with administrative proceedings chosen by his command. The medical examiner noted he was worried about being chaptered from the military and he had financial concerns. 7. A DA Form 4126-R (BAR to Reenlistment) shows the applicant was barred from reenlistment on 31 May 1988. 8. The applicant’s commander notified him on 28 June 1988 that he was initiating separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. As reasons for this action, the commander cited his NJP. The commander indicated he was recommending the applicant receive a general discharge. On the same date, the applicant acknowledged receipt of the notification memorandum. 9. The applicant consulted with legal counsel on 28 June 1988 and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected to submit statements in his own behalf (not attached to the separation packet) and acknowledged that: * he could expect to encounter substantial prejudice in civilian life if issued a less than honorable discharge * if his discharge was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading * an act of consideration by the ADRB or the ABCMR did not imply that his discharge would be upgraded * he would be ineligible to apply for enlistment in the U.S. Army for a period of two years after discharge 10. The applicant's commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct. The applicant's battalion commander recommend approval of the separation action on 29 June 1988. 11. The separation authority waived further rehabilitative efforts on 20 July 1988, and approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct. The separation authority directed the issuance of a general discharge and directed that the applicant not be transferred to the Individual Ready Reserve. 12. The applicant was discharged on 29 July 1988. His DD Form 214 shows he completed 1 year, 3 months, and 2 days of net active service. 13. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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. A discharge under other than honorable conditions 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. DISCUSSION: 1. The applicant requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. He contends he was young at the time and made bad decisions. 2. The applicant enlisted in the Regular Army on 28 April 1987 at the age of 21. Subsequently, he received NJP, was arrested for DWI, and was barred from reenlistment. He was cleared by a mental status evaluation to participate in administrative proceedings in which his chain of command recommended him for separation. 3. His DD Form 214 shows he was separated under the provisions of Army Regulation 635-200, chapter 14-12b, by reason of "misconduct – pattern of misconduct." 4. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action. The separation authority determined his overall record of service did not rise to the level required for an honorable discharge. 5. The applicant's age at the time of his misconduct is acknowledged; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their periods of military service . BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160006842 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) AR20160006842 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006842 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2