IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20160017802 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. IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20160017802 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :RCJ :QAS :JTM DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20160017802 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 other than honorable conditions discharge. He also requests a personal hearing. 2. The applicant states he served honorably while in Kosovo. He completed his entire 3-year obligation. He is in need of medical benefits for injuries that occurred while serving and he is also trying to further his education. 3. The applicant provides no additional evidence. 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 16 July 1998 and he held military occupational specialty 19D (Cavalry Scout). He served in Germany from 24 November 1998 to 23 November 2000. He also served in Kosovo from 28 November 1999 to 10 June 2000. 3. On 13 April 1999, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of military Justice (UCMJ) for wrongfully using marijuana on two occasions and for willfully disobeying a lawful order. 4. On 20 October 2000, again he accepted NJP under the provisions of Article 15 of the UCMJ for larceny of the property of another Soldier totaling approximately $500. 5. On 23 January 2001, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana. 6. On 28 March 2001, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for a pattern of misconduct. The commander recommended the issuance of an under other than honorable conditions discharge. The specific reasons are: * four incidents of wrongfully using marijuana * theft * failure to obey a lawful order * operating a motor vehicle while drunk 7. On 4 April 2001, the applicant acknowledged receipt of the commander's notification of the intent to separate him. He 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 that were available to him. He waived consideration of his case before an administrative separation board, conditionally waived a personal appearance before such board, and elected to submit a statement on his own behalf. The applicant further acknowledged: * he understood he could expect to encounter substantial prejudice in civilian life if a General Discharge Certificate was issued to him * he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws 8. Also on 4 April 2001, the applicant submitted a separate conditional waiver memorandum wherein he waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less than general, under honorable conditions. He further indicated that if the separation authority refused to accept his conditional waiver, his case would be referred to an administrative separation board. In that case, he requested a personal appearance before an administrative separation board. 9. Subsequent to this acknowledgement, on 5 April 2001, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200, for a pattern of misconduct. The chain of command recommended a waiver of rehabilitative transfer and recommended the issuance of an under other than honorable conditions discharge. 10. The separation authority disapproved his conditional waiver and the applicant was notified to appear before an administrative separation board. 11. On 20 June 2001, an administrative separation board convened in Vilseck, Germany, with the applicant and his counsel present, to consider if the applicant should be separated prior to the expiration of his term of service or retained. The administrative separation board, having carefully considered the evidence, found the allegations of a pattern of misconduct by the applicant were supported by a preponderance of the evidence. The administrative separation board recommended his separation with an under other than honorable conditions discharge. 12. The separation authority approved the administrative separation board's finding and recommendation, and ordered the applicant discharged from the Army under the provisions of chapter 14 of AR 635-200, due to a pattern of misconduct. The separation authority directed the issuance of an under other than honorable conditions discharge. The applicant was accordingly discharged on 5 July 2001. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 5 July 2001 under the provisions of chapter 14, AR 635-200, by reason of misconduct with an under other than honorable conditions character of service. This form further confirms he completed a total of 2 years, 11 months, and 20 days of active military service. This form shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * North Atlantic Treaty Organization Medal * Drivers Badge with Wheel Vehicle Tab * Kosovo Campaign Medal with bronze service star 14. On 8 May 2002, the Army Discharge Review Board denied his request for an upgrade of his discharge. REFERENCE: AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general under honorable conditions character of service, if such is merited by the Soldier's overall record. 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. DISCUSSION: 1. The evidence of record shows the applicant displayed a pattern of misconduct consisting of multiple instances of using or abusing illegal drugs, driving under the influence, failing to obey lawful orders, and larceny. Accordingly, his chain of command initiated separation action against him for misconduct. 2. The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. Based on his record of indiscipline, the separation authority determined the applicant's service did not rise to the level required for an honorable or a general characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017802 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017802 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2