BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20120000986 


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 the dark area in his military service needs to be brightened.  He has not been able to find peace.  He made a lot of bad choices and decisions without knowing the ramifications.  He let himself and his country down.  Being human, he can only say he made mistakes and his life is in shambles. 

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.  On 27 October 1976, the applicant enlisted in the Army National Guard (ARNG) for 6 years and he served in an active duty for training (ADT) status from 10 April 1977 until he was honorably released to the control of the ARNG on 
15 July 1977.

3.  The applicant was an unsatisfactory participant while in the ARNG and as such, on 11 September 1978, his State Adjutant General discharged him from the ARNG and ordered him to active duty, effective 23 August 1978.

4.  On 24 August 1978, he failed to join his active duty unit at Fort Knox, KY, and as such, he was reported in an absent without leave (AWOL) status.  He surrendered to military control at Fort Knox, KY, on 11 September 1978.

5.  On 15 September 1978, he accepted NJP under the provisions of Article 15 of the  Uniform Code of Military Justice (UCMJ) for being AWOL from 24 August to 11 September 1978.

6.  On 19 September 1978, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order twice. 

7.  On 9 January 1979, he was convicted by a special court-martial of two specifications of assaulting another Soldier.  The Court sentenced him to reduction to the lowest enlisted grade, confinement at hard labor, and a forfeiture of pay.  The convening authority approved his sentence on 7 March 1979.

8.  On 20 April 1979, he was reprimanded by his commander for being AWOL from 9 January to 7 February 1979 and 7 to 9 February 1979.

9.  On 15 June 1979, he was convicted by a summary court-martial of two specifications of being AWOL from 23 April to 6 June 1979 and on 7 June 1979.  The Court sentenced him to confinement at hard labor and a forfeiture of pay.  The convening authority approved his sentence on 18 June 1979.

10.  The complete facts and circumstances surrounding the applicant’s discharge processing are not available for review with this case.  However, his record contains the following documents:

	a.  Orders 127-1, issued by Headquarters, U.S. Army Retraining Brigade, Fort Riley, KS, on 3 July 1979, directing the applicant's discharge from the Army, effective 5 July 1979.

	b.  A properly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 5 July 1979 under the provisions of paragraph 14-33b of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct (Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities) in the rank/grade of private/E-1, with an under other than honorable conditions discharge.  This form also shows he completed 5 months and 6 days of creditable active service during this period of service and he had 156 days of lost time.

11.  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 limitation.

12.  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, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter

13.  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.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 5 July 1979 under the provisions of paragraph 14-33b of Army Regulation 635-200 for misconduct with an under other than honorable conditions discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his 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.  

3.  The available evidence shows a military career marred with misconduct that included three instances of NJP, a reprimand, two courts-martial, and multiple instances of AWOL.  As a result, his record of service was not satisfactory and insufficiently meritorious to warrant upgrading his discharge to general or an honorable.  Therefore, he is not entitled to 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)                                         AR20120000986



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ABCMR Record of Proceedings (cont)                                         AR20120000986



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