IN THE CASE OF:	

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110006810 


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.

2.  The applicant states he was not prepared for military service.  He adds that he was young at the time and had the choices of either the Army or prison.  His request is quite simple:  he was an 18-year old person who was willing to comply with authorities along with those whom best interest were not his.  If he knew then what he knows now he would have made the Army a career as a minister. In any case, in 1999, he received his credentials as a minister.  He would like to get employment or other benefits.

3.  The applicant did not provide any 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 was born on 17 August 1961 and enlisted in the Regular Army at nearly 19 years of age on 1 July 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Cook).  The highest rank/grade he attained was private/E-2. 

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for/on:

* 1 December 1980, for wrongfully possessing marijuana
* 23 February 1981, for disrespecting a superior noncommissioned officer
* 24 April 1981, for being absent without leave (AWOL) from 18 to 19 April 1981 and on 23 April 1981
* 28 April 1981, for disobeying a lawful order
* 14 July 1981, for failing to go at the time prescribed to his appointed place of duty

4.  On 11 May 1981, after having transferred to the U.S. Army Retraining Brigade at Fort Riley, KS, by memorandum, his immediate commander indicated that he had failed to successfully complete the Individual Effectiveness Course (IEC) and he had been recommended by cadre for elimination under chapter 14 of Army Regulation 635-200 (Personnel Separations).  He had received over 50 counseling sessions for misconduct including:  possession of marijuana, disrespect, AWOL, shirking, pass violation, failure to repair, failure to report, lack of self-discipline, and other violations.

5.  On 26 May 1981, 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 - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

6.  On 26 May 1981, he acknowledged receipt of the commander's intent to separate him.  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 that were available to him.  He elected consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit a statement on his own behalf.  

7.  The applicant further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was 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 and that he could expect to encounter substantial prejudice in civilian life.

8.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to misconduct- frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant failed to complete IEC and had demonstrated an inability to accept criticism or efforts to improve.  He exhibited a pattern of misconduct and he had been counseled multiple times by his chain of command. 

9.  On 19 and 22 June 1981, his immediate and intermediate commanders recommended approval of the discharge 

10.  On 24 July 1981, his immediate commander initiated a Bar to Reenlistment Certificate citing his repeated misconduct.  The applicant was furnished with a copy of this bar but he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the appropriate authority.

11.  On 14 July 1981, an administrative separation board convened at Fort Riley, KS and found substantial evidence of a pattern of misconduct involving frequent incidents of a discreditable nature with civil or military authorities as well as an established pattern of shirking.  The board recommended his discharge with an under other than honorable conditions character of service.

12.  On 25 August 1981, the separation/convening authority approved the findings and recommendations of the administrative separation board and ordered the applicant's discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  

13.  He was discharged on 8 September 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 - 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 confirms he completed a total of 1 year, 2 months, and 8 days of creditable active military service.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories 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.

16.  Army Regulation 635-200, 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.

17.  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 under other than honorable conditions discharge should be upgraded.

2.  His record of service shows a history of misconduct that included two instances of AWOL, multiple instances of NJP, a bar to reenlistment, and an extensive history of negative counseling.  He was sent to the retraining brigade correctional training but failed to improve his attitude and ability.  He demonstrated little desire to return to duty and despite receiving considerable counseling, he did not respond favorably.  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 nearly 19 years of age at the time of his enlistment and between 19 and 20 years of age during his repeated misconduct.  However, there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their service.

5.  The applicant's need for benefits was noted; however, the ABCMR does not correct records solely for the purpose of establishing entitlements to other programs or benefits.  His record of service was not satisfactory and is insufficiently meritorious to warrant a general discharge.  Therefore, he is not entitled to an upgrade of his discharge to neither a general nor an honorable discharge.

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 that 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)                                         AR20110006810



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ABCMR Record of Proceedings (cont)                                         AR20110006810



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