BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003388 


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 discharge under other than honorable conditions to honorable or general under honorable conditions.

2.  The applicant states he asked for help for his drug and alcohol addictions at the time, but he did not receive any help.  He was a young African American Soldier and he states he was assaulted by a group of Caucasian males for being on the pay phone too long.  He used his knife to defend himself and cut one of the Caucasian males.  He was court-martialed and sent to Fort Riley, KS, for retraining.  He asked for help with his addictions, but his cries for help fell on deaf ears.  If he had received help when he asked for it, he would have been a better Soldier and a better person.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 records show he was born on 5 October 1961 and enlisted in the Regular Army on 13 February 1979 at 17 years and 4 months of age.  He held military occupational specialty 11B (Infantryman).

3.  On 4 September 1979, he was convicted by a special court-martial of one specification of committing assault upon another Soldier at Fort Hood, TX.  The court sentenced him to a reduction to the lowest enlisted grade, forfeiture of pay, and confinement at hard labor for 4 months.  The convening authority approved his sentence on 1 October 1979.

4.  Subsequent to his court-martial, he was sent to Fort Riley, KS, for retraining where he remained from on or about 12 September 1979 to on or about 14 November 1979.  He was then reassigned to Fort Campbell, KY.

5.  On 31 March 1980 at Fort Campbell, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 15 to 16 March 1980.

6.  On 16 May 1980, the applicant's immediate commander initiated a bar to reenlistment against him citing his continued misconduct.  The bar was ultimately approved by the approval authority.

7.  His records reveal two more instances of NJP under the provisions of Article 15 of the UCMJ, at Fort Campbell, KY, as follows:

* on 21 July 1980, for committing an assault against a superior noncommissioned officer and being disrespectful in language toward him
* on 19 August 1980, for being AWOL from 6 to 11 August 1980

8.  His records contain an extensive history of negative counseling by members of his chain of command for various infractions, including:

* poor performance
* bad attitude
* breaking restriction
* disrespect
* insubordination
* absence from training

9.  On 21 August 1980, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct.

10.  On 22 August 1980, the applicant acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel 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 requested consideration of his case by a separation board, a personal appearance before a separation board, and elected not to submit a statement on his own behalf.

11.  The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further 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 Federal and State laws.

12.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant was sent to the retraining brigade to receive correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and ability.  However, his actions since arrival precluded accomplishment of this objective as evidenced by his behavior and attitude.  He had demonstrated little desire to return to duty.  He received considerable counseling since his arrival but his actions precluded rehabilitation and he did not respond favorably.

13.  On 26 August and 1 October 1980, his intermediate and senior commanders reviewed the recommended separation action and recommended approval.

14.  On 15 October 1980, the convening authority ordered a board of officers convene to consider the applicant's discharge for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.

15.  On 26 November 1980, the applicant again consulted with legal counsel 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 waived consideration of his case by a separation board and a personal appearance before a separation board.

16.  On 28 December 1980, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

17.  He was discharged on 7 January 1981.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with service characterized as under other than honorable conditions.  This form further shows he completed a total of 1 year, 10 months, and 17 days of creditable active military service and he had 8 days of lost time.

18.  On 31 December 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

19.  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 at the time included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such were merited by the Soldier's overall record.

20.  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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded to honorable or general under honorable conditions.

2.  His record of service shows a history of misconduct that included two instances of AWOL, one court-martial, a period of confinement, and an extensive history of negative counseling.  He was sent to the retraining brigade for correctional training but failed to improve his attitude and ability.  He demonstrated little desire to return to duty and he did not respond favorably despite receiving considerable counseling.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.

4.  The applicant was 17 years and 4 months of age at the time of his enlistment and over 18 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

5.  There is no evidence the applicant suffered from a drug or alcohol problem at the time or that he addressed such problem with his chain of command and/or support channels.  There is no evidence his extensive history of misconduct was related to drug or alcohol abuse.

6.  His record of service was not satisfactory and is insufficiently meritorious to warrant an honorable or a general discharge.  Therefore, he is not entitled to the requested relief.


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)                                         AR20110003388



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ABCMR Record of Proceedings (cont)                                         AR20110003388



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