BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160008217 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: 6 February 2018 DOCKET NUMBER: AR20160008217 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: 6 February 2018 DOCKET NUMBER: AR20160008217 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 honorable conditions (general) character of service to honorable. 2. The applicant states he would like his discharge upgraded in order to be eligible for available benefits. He claims his original term of service was performed with minimal disciplinary action. He continues to volunteer with and for his fellow veterans and is a contributing member of the veteran community. 3. The applicant provides a copy of 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 5 July 1984. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on: a. 1 November 1985, for on or about 18 September 1985, wrongfully using marijuana and for failing to go to his appointed place of duty on 18 and 21 October 1985; and b. 11 February 1986, for sleeping at his post on 21 January 1986. 4. His records contain a DA Form 3322-R (Report of Mental Status Evaluation) which shows he suffered from no significant mental illness, was mentally responsible, able to distinguish right from wrong, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 5. On 21 April 1986, the applicant was informed by his immediate commander that he was contemplating action to separate him for unsatisfactory duty performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, based on his use of illegal drugs and failing to be at his appointed place of duty at the appointed time. His immediate commander also noted the applicant had received 6 negative counseling statements in the areas of attitude, personal appearance, work performance and failing to pay his debts. 6. On 21 April 1986, the applicant signed a document acknowledging that he was afforded the opportunity to consult with appointed counsel for consultation; or military counsel of his own choice, if reasonably available; or civilian counsel at his own expense. The applicant declined these opportunities. This document also informed him of the bases for the contemplated separation, its effects, of the rights available to him, and of the effects of any action taken to waive his rights. a. The applicant waived consideration of his case before a board of officers, waived a personal appearance hearing before a board of officers, and indicated that he would not submit statements in his own behalf. The applicant also waived his right to representation by counsel. b. The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life. 7. On 21 April 1986, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 13, by reason of unsatisfactory duty performance. His immediate commander requested a waiver of further counseling and rehabilitation. He stated the applicant had been counseled concerning his behavior and deficiencies. His conduct was determined to be a detriment to the maintenance of good order and discipline within his unit. His continued presence would only interfere with the mission of the chain of command and the Soldiers in the unit. The applicant expressed no desire to adapt to the military way of life and could not be trusted by his peers or supervisors to accomplish a simple task. His overall performance was poor. 8. On 21 April 1986, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate. 9. On 25 April 1986, the applicant was discharged accordingly. His DD Form 214 confirms he was separated under the provisions of Army Regulation 635-200, chapter 13, with an under honorable conditions (general) characterization of service. He completed 1 year, 9 months, and 21 days of net active military service with no lost time. 10. There is no evidence that he petitioned 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 policy and prescribes the procedures for the administrative separation of enlisted personnel: a. Chapter 13, in effect at that 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. DISCUSSION: 1. The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. 2. His records show he committed a serious offense on at least one occasion. Accordingly, his commander initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. At the time, the characterization of service for this type of discharge was normally under honorable conditions (general) or honorable. The separation authority determined his service did not meet the criteria to be characterized as honorable. 3. The ABCMR does not grant requests for upgrade of discharges solely for making an applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008217 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008217 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2