IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120009232 


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 to a general discharge.

2.  The applicant states he was young at the time.  He is now more mature and would like his characterization of service changed to something worthy of benefits. 

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.  The applicant's records show he was born on 20 November 1957 and enlisted in the Regular Army at 17 years and 6 months of age on 10 June 1975.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 83D (Process Photographer).  

3.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.  The highest rank/grade he attained during his military service was private/E-2.  He was assigned to Fort Hood, TX.

4.  His records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* 19 March 1976, failing to go at the time prescribed to his appointed place of duty
* 28 April 1976, being absent without leave from 15 to 21 April 1976
* 7 February 1977, failing to go from his appointed place of duty and failure to repair

5.  He was frequently counseled by members of his chain of command for various infractions, most notably a list of 24 checks returned for insufficient funds. 

6.  Subsequent to this misconduct, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his substandard personal appearance, frequent incidents, and substandard performance.  The applicant was provided with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was approved by the appropriate authority.

7.  On 15 March 1977, the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of misconduct-frequent incidents of discreditable nature and an established pattern for showing dishonorable failure to pay just debts.  The immediate commander further recommended an under other than honorable conditions character of service.

8.  The applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200.  He further waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He further indicated: 

* he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood that in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life

9.  Subsequent to his acknowledgement and consult with counsel, the applicant's immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of misconduct.  His battalion commander recommended approval. 

10.  On 5 April 1977, the separation authority waived further rehabilitative requirements and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of misconduct and that he be issued a discharge under other than honorable conditions.  The applicant was accordingly discharged on 14 April 1977.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 1 year, 9 months, and 28 days of creditable active military service and had 7 days of lost time.

12.  On 8 June 1988, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 

13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for misconduct.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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 (emphasis added), 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's records reveal a history of misconduct which includes three instances of NJP and frequent counseling by his chain of command for bad checks.   He was provided with multiple counseling and/or opportunities for rehabilitation by various members of his chain of command but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.  

2.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable. 

3.  The applicant was 17 years and 6 months of age at the time of his enlistment and 19 years of age when he began is pattern of misconduct.   However, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

4.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading his discharge to either 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)                                         AR20120009232





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009232



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1