BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120007017 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, all of his negative actions were of a verbal nature; however, he was a good Soldier.  In hindsight, he was too young and immature to take on the tasks of a Soldier.  He was uneducated and lacked a high school diploma; therefore, he was sent to retraining.

3.  The applicant provides no additional 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 was born on 10 April 1960 and enlisted in the Regular Army, on 19 June 1979, at age 19.  He held military occupational specialty 11C (Indirect Fire Infantryman).  He was assigned to Germany from 3 October 1979 to 
14 September 1980 and later to Fort Riley, KS, from 15 September 1980 to 
17 December 1980.  

3.  He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions between 
14 December 1979 and 22 July 1980 for:

* seven instances of failing to go to his appointed place of duty
* falling asleep on guard duty, negligently maintaining the general purpose checklist, and leaving his appointed post prior to being properly relieved
* assaulting two other Soldiers by striking them with his fists with the intent to commit robbery and larceny of hashish of an unknown value
* disobeying a lawful order from a superior noncommissioned officer

4.  On 15 September 1980, he was convicted by a special court-martial of five specifications of damage to private property and three specifications of larceny of private property.  

5.  His DA Form 2-1 (Personnel Qualification Record) shows:

* He was confined in Mannheim, Germany, U.S. Army Confinement Facility from 15 September 1979 to 14 October 1980
* He was assigned to Fort Riley, KS, U.S. Army Retraining Battalion (USARB) in a confinement/trainee status from 25 September 1980 to 
2 October 1980
* He was assigned to USARB, Fort Riley, KS, in a trainee status from 
3 October 1980 to 22 October 1980
* He was assigned to USARB, Fort Riley, KS, in a confinement status from 23 October 1980 to 26 October 1980
* He was assigned to 3rd Unit, 2nd Battalion, USARB, Fort Riley, KS, in a trainee status from 27 October 1980 to 17 December 1980

6.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 30 October 1980.  This form shows the medical officer who examined him determined his behavior was normal, he was fully alert and oriented, he had a level mood, a clear thinking process, normal thought content, and a good memory.  This form further shows the medical officer found no significant mental illness, found him to be mentally responsible, able to distinguish between right and wrong and adhere to the right, he had the mental capacity to understand and participate in board proceedings, and he met medical retention standards prescribed by Army regulations.

7.  His record contains a Standard Form (SF) 88 (Report of Medical Examination) and SF 93 (Report of Medical History), both dated 30 October 1980.  These forms show he was examined by a medical officer and determined to meet medical retention standards.  

8.  On 13 November 1980, his commander initiated separation action against him for misconduct-frequent incidents of a discreditable nature under the provisions of Army Regulation 635-200, paragraph 14-33.  His commander stated:

	a.  He recommended the applicant be discharged from the military service for misconduct because of frequent incidents of a discreditable nature.  A discharge for unsuitability was not deemed appropriate because his behavior was not due to an inability to satisfactorily perform within the meaning of unsuitability.  The highest rank/grade he held was private/E-2; he received one special court- martial and four Article 15s.  

	b.  He was sent to the USARB, Fort Riley, KS, for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, his actions since arrival precluded accomplishment of the objective.  He demonstrated little desire for retraining to duty.  

	c.  He received considerable counseling by members of the leadership team, cadre, members of professional staff agencies, and social workers; however, he did not respond favorably to counseling or the duties given to him.  He possessed the mental and physical ability necessary to be an effective Soldier, but his record and failure to react constructively to the rehabilitation program indicated he should not be retained.  Elimination under the provisions of other regulations was not considered appropriate.  It was further recommended that further counseling or rehabilitation efforts be waived.

9.  On 24 November 1980, 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 indicated he did not wish to provide a statement in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge.  He further acknowledged he understood that as a result of the issuance of a under other than honorable conditions discharge he could be ineligible for many or all benefits as a veteran under Federal and State laws.

10.  On 9 December 1980, the separation authority waived further rehabilitative efforts, approved his discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 17 December 1980, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions discharge, in accordance with Army Regulation 635-200, paragraph 14-33b(1), by reason of "frequent involvement in incidents of a discreditable nature with civil or military authorities."  He completed 1 year, 3 months, and 16 days of creditable active service, and he had 71 days of lost time.  

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.  A discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under this chapter.

14.  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.


15.  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 contends his discharge should be upgraded because he was young and immature at the time of his service.  Records show he was almost 20 years of age at the time of his offenses.  However, there is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant’s record of service shows a history of misconduct that included a court-martial conviction, four instances of NJP, 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.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade to an honorable or a general 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)                                         AR20120007017



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ABCMR Record of Proceedings (cont)                                         AR20120007017



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