IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007330 


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 discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.

2.  The applicant states he served well and was a very good leader.  He believes his age played a big part in his immature decisions and regrets those poor decisions.  He requests the upgrade to remove the stain from his family name.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and four letters of support.

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 enlisted in the Regular Army on 14 November 1978 at age 18, completed training, and was awarded the military occupational specialty 12B (Combat Engineer).

3.  The applicant was advanced to specialist four/E-4 on 1 August 1980 and laterally appointed to corporal (CPL)/E-4 on 1 April 1981.  He reenlisted on
20 May 1981.  

4.  He was reduced to private first class/E-3 on 30 April 1982, private/E-2 on 22 October 1982, and private/E-1 on 21 March 1983.  

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on nine occasions for the following offenses:

* 3 June 1980, being absent without leave (AWOL) for one day
* 29 September 1981, missing movement
* 27 March 1982, dereliction of duty
* 30 March 1982, failure to go to his appointed place of duty
* 10 April 1982, failure to go to his appointed place of duty and dereliction of duty
* 19 April 1982, failure to go to his appointed place of duty 
* 30 April 1982, failure to go to his appointed place of duty and being AWOL for 8 and 1/2 hours
* 22 September 1982, failure to go to his appointed place of duty
* 2 March 1983, failure to go to his appointed place of duty

6.  The record contains two March 1983 negative formal counseling statements: one for poor attitude bordering on disrespect and one for missing formation.

7.  On 4 March 1983, his command initiated separation action for a pattern misconduct under Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14.  His unit commander recommended a waiver of rehabilitative transfer be granted and the applicant be separated with an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.

8.  After consulting with counsel and being advised of his rights and options, the applicant waived his rights to an administrative discharge board, to appear in person or be represented by counsel at a hearing, and to make a statement on his own behalf.  He acknowledged that he could receive a UOTHC discharge.  He also acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

9.  The discharge authority approved the separation, granted the waiver of rehabilitative transfer, directed he be reduced to the lowest enlisted grade, and discharged with a UOTHC. 

10.  The applicant was discharged UOTHC on 30 March 1983.  He had for 4 years, 4 months, and 16 days of creditable service with 1 day of lost time.

11.  The letters of support provided by the applicant describe him as having a caring nature and dedicated to any endeavor he is involved with.  He is a diligent and hard working individual with a strong work ethic.  A gentleman of integrity, compassion, and strength.

12.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally considered appropriate. 

	b.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.

	c.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  It is noted that the applicant entered active duty at age 18, completed training, was advanced to CPL, and served for almost two years before any negative incidents were documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

2.  The evidence of record shows he had two NJP's during  his first enlistment which he overcame.  However, six months after his second NJP, his behavior deteriorated significantly resulting in his receipt of seven additional NJPs. 

3.  His claim of significant leadership ability is belied and outweighed by the nature and frequency of his nine NJPs.

4.  The letters attesting to the applicant’s post-service achievements and good character and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading his discharge.

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.  Therefore, there is no basis for granting 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)                                         AR20120007330





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007330



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1