IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110001486 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states his behavior was not as bad as it seemed and he did not receive a Bad Conduct Discharge.

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's record shows he enlisted in the Regular Army on 3 August 1978.  He completed basic combat training and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

3.  Item 4 (Assignment Considerations) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was permanently disqualified for airborne training due to his lack of motivation which led to his self-imposed withdrawal from the course.

4.  His record contains documentation that shows he received four rehabilitative transfers to different units.  These transfers were the result of his unit's and battalion commanders' recommendations and were based upon the following reasons:

* he displayed an extremely poor attitude toward his duties and his supervisors
* continual counseling by his section chiefs, senior noncommissioned officers (NCO), and officers had little apparent effect
* during his 8 months in the unit he had worked for three section chiefs in two separate sections with the same observations made by all
* he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) – once at battery-level [battery grade (BG)] and twice at battalion-level [field grade (FG)]
* his general disregard for orders was detrimental to the discipline of the unit

5.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on six occasions for violation the articles with the offenses shown:

* 15 January 1979 – BG – Article 121 – larceny
* 26 October 1979 – FG – Articles 121 and 134 – larceny, sleeping on duty, being drunk on guard
* 3 April 1980 – BG –Articles 86 and 91 – failing to repair and disobeying a regulation
* 29 April 1980 – BG – Articles 134 and 86 – breaking restriction and failing to repair
* 3 June 1980 – FG – Article 91 (two counts) – disrespecting a noncommissioned officer (NCO) and disobeying orders
* 6 October 1980 – BG – Article 86 and Article 96 (three counts) – failing to repair, disobeying an order from an NCO, and (two counts) disrespecting an NCO

6.  His record also shows he accumulated numerous formal counseling statements for a myriad of misconduct including:  failing to secure military equipment; failing to follow orders; disrespecting NCO's, failing to maintain his uniform, and failing to maintain his personal appearance, clothing, and equipment.

7.  On 12 December 1980, a bar to reenlistment was approved and imposed against the applicant based upon his unsatisfactory conduct and efficiency and his frequent acts of misconduct.

8.  On 7 April 1981, the applicant's unit commander notified him of his intent to initiate action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b, for frequent incidents of a discreditable nature with civil or military authorities.  The applicant acknowledged receipt of this notification on the same date.

9.  On 9 April 1981 after having been advised by legal counsel, the applicant requested consideration of his case and a personal appearance before a board of officers, requested counsel, indicated he would submit statements in his own behalf, and indicated he understood the ramifications of the separation action.

10.  On 14 April 1981, the applicant's unit commander recommended his separation from the service under the provisions of paragraph 14-33b of Army Regulation 635-200 for misconduct – frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  The commander noted the applicant requested consideration of his case by a board of officers.  The battalion and brigade level commanders recommended approval.

11.  On 29 June 1981, the applicant withdrew his request for consideration of his case by a board of officers and his chain of command supported his request.  On 7 July 1981, the applicant formally waived consideration of his case and a personal appearance before a board of officers and waived consulting counsel.

12.  On 16 July 1981, the separation authority approved the applicant's separation action and the issuance of an Undesirable Discharge Certificate.

13.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), with a separation program designator code of "JKA" (misconduct – frequent incidents of a discreditable nature with civil or military authorities).

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.  However an under other than honorable conditions discharge is normally appropriate for Soldiers discharged under this chapter.

15.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

16.  Army Regulation 635-200, 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 AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his undesirable discharge was carefully considered and determined to be without merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  The evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his undesirable discharge to a general or an honorable discharge.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

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.

ABCMR Record of Proceedings (cont)                                         AR20110001486



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ABCMR Record of Proceedings (cont)                                         AR20110001486



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