IN THE CASE OF:	  

		BOARD DATE:  15 May 2012

		DOCKET NUMBER:  AR20110022985 


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 the reasons behind his discharge were youthful mistakes.  He is a grown man now and he would like to honor his family.

3.  The applicant provides:

* Certification of Service
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment or Reenlistment Agreement) 
* Special Court-Martial Order Number 3
* DA Form 2-1 (Personnel Qualification Record)

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

Counsel requests a review of the applicant's discharge for a potential upgrade.  

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 May 1955 and he enlisted in the Regular Army on 15 November 1978 at 17 years and 6 months of age.  He held military occupational specialty 36K (Tactical Wire Operations Specialist).

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

* 11 July 1989, being absent without leave (AWOL) from 23 to 25 June 1980
* 17 July 1981, failing to go at the time prescribed to his appointed place of duty on three separate occasions
* 10 September 1981, damaging a military truck and wrongfully traveling at an excessive speed
* 9 October 1981, theft, wrongfully possessing marijuana, and being disrespectful toward a noncommissioned officer
* 2 March 1982, wrongfully possessing marijuana

4.  On 9 March 1982, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his poor performance and negative attitude as evidenced by his continued misconduct.  The commander remarked that the applicant lacked motivation and his contributions to the mission became negligible.  The applicant was provided with a copy of this bar but he elected not to submit a statement.  The bar was ultimately approved by the appropriate authority.

5.  On 13 May 1982, he was convicted by a special court-martial of one specification of being AWOL from 3 April to 2 May 1982.  The court sentenced him to a forfeiture of pay and confinement at hard labor for 3 months.  The convening authority approved his sentence on 3 June 1982.

6.  The applicant was sent to Fort Riley, KS, for retraining where he remained.  While at Fort Riley, KS, he was frequently counseled for various infractions including negative attitude, blaming others for his failures, dislike of adhering to military rules, insubordination, and substandard performance.  

7.  On 29 July 1982, 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.

8.  On 29 July 1982, 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 waived consideration of his case by a separation board, waived personal appearance before a separation board, and elected not to submit a statement on his own behalf.

9.  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.

10.  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.

11.  On 22 July 1982, his intermediate commander recommended approval of the discharge action and a waiver of any further counseling or rehabilitative efforts. 

12.  On 12 August 1982, 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.  The applicant was accordingly discharged on 17 August 1982.  

13.  The DD Form 214 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 10 months and 27 days of active service during this period (he also had 2 years, 6 months, and 8 days of prior active service) and he had lost time from 3 April to 1 May 1982 and 3 May to 27 July 1982.

14.  There is no indication he petitioned 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 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.

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.

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's record of service shows a history of misconduct that included multiple 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.

2.  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.

3.  The applicant was 17 years and 6 months of age at the time of his enlistment and over 19 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.

4.  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 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)                                         AR20110022985



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022985



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1