IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20120001340 


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, that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states, in effect, he made some silly mistakes when he was in the service.  He contends that he was young and he was not mature enough to handle the situation when things got out of hand.  He is deeply sorry for his actions and wishes he could do it over again.  He would be a career Soldier.  He further contends that he does not believe his mistakes were serious enough to warrant the type of discharge that he received.  He served almost 3 years and thinks his discharge should be reconsidered.

3.  The applicant provides no additional documentation.

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, at age 18, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  The applicant accepted the following nonjudicial punishment (NJP) and court-martial:

	a.  on 2 February 1977, NJP for leaving his appointed place of duty without authority;

	b.  on 21 October 1977, summary court-martial conviction for wrongfully communicating a threat and for possession of marijuana;

	c.  on 5 July 1978, NJP for missing morning and afternoon formations and being absent without leave (AWOL) most of the duty day; and

	d.  on 7 August 1978, NJP for leaving his guard post without being properly relieved.

4.  The applicant was informally counseled as follows:

	a.  on 15 September 1977, for writing worthless checks;

	b.  on 11 May 1978, for missing morning formation and physical training;

	c.  on 12 May 1978, for being late to afternoon formation and failing to pick up a machine gun for cleaning;

	d.  on 5 June 1978, for missing morning formation; and

	e.  on 15 June 1978, for sleeping during class.

5.  On 5 June 1978, at a mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.


6.  On 11 August 1978, the applicant's commander notified him that he was recommending him for separation under the provisions of Army Regulation 
635-200 (Personnel Separations), paragraph 14-33b(1) due to his frequent incidents of a discreditable nature with civil or military authorities.  The commander stated that the applicant had been a constant discipline problem requiring repeated counseling, NJPs, and a court-martial.  The applicant had shown no signs of wanting to be anything other than a disciplinary problem; therefore, further attempts at rehabilitation would be a waste of time and effort.

7.  On 14 August 1978, the applicant acknowledged receipt of the commander's recommendation.

8.  On 14 August 1978, the applicant’s commander recommended separation from the service due to frequent incidents of a discreditable nature.  Repeated counseling, NJPs and court-martial had brought no change in his attitude or behavior.  The applicant had no regard for authority or regulation, and all attempts to rehabilitate him met with failure.

9.  On or about 21 August 1978, the applicant met with legal counsel concerning his rights.  He elected not to make a statement in his own behalf.

10.  On 18 January 1979, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a UOTHC discharge.

11.  On 30 January 1979, the applicant was accordingly discharged.  He had completed 2 years, 2 months, and 20 days of creditable active duty service, and he had 14 days of lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

13.  Army Regulation 635-200, then in effect, prescribed procedures for separating members for misconduct.

	a.  Chapter 14 provided specific categories including frequent incidents of a discreditable nature with civil or military authorities.  Action was required to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  This regulation also provided that an honorable discharge was 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.

	c.  This regulation further provided that a general discharge was 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 contends that his UOTHC discharge should be upgraded because he was young and immature.  He further argues that his "silly" mistakes were not serious enough to warrant the type of discharge that he received.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was age 18 and satisfactorily completed training.  His satisfactory performance demonstrates his capacity to serve and shows he was neither too young nor immature.

3.  The record shows five counseling's, three NJPs, and one summary court-martial.  Clearly, this record of counseling and punishment document his repeated and continual incidents of a discreditable nature.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

7.  In view of the above, the applicant's request should be denied.





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)                                         AR20120001340



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ABCMR Record of Proceedings (cont)                                         AR20120001340



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