IN THE CASE OF: 

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120010252 


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 that item 28 (Narrative Reason for Separation) of his
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for "Misconduct - frequent incidents of a discreditable nature with civil or military authority."  He asserts he was not involved in any incident with civil authorities.

   a.  He acknowledges that he made mistakes while serving in the Army.  His worst mistake was reenlisting and staying at Fort Bragg, North Carolina.  At the time he was planning to marry a young woman who was attending college nearby.

   b.  The Army glamorized the use of alcohol in the mid-1970s, he became dependent on alcohol, and he was involved in several minor incidents.

   c.  It has taken him 32 years and a lot of effort to resolve his personal issues. He has suffered from alcoholism, drug addiction, depression, and other medical issues.  He has turned his life around by completing treatment programs and training, and his family stands behind him in his effort to upgrade his discharge.

   d.  He requests a personal appearance before the Board.

3.  The applicant provides copies of four certificates and three letters in support of his application.

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 (RA) on 11 May 1976 for a period of 3 years.  He was awarded military occupational specialty 68J (Aircraft Armament Repairman).

3.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant was honorably discharged on 11 December 1978 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), prior to expiration of term of service, to reenlist in the RA.  He had completed 2 years,
7 months, and 1 day of net active service this period.

4.  He reenlisted in the RA on 12 December 1978 for a period of 4 years.

5.  The applicant received nonjudicial punishment (NJP) for misconduct on five occasions (2 August, 25 September, 1 October, 10 December 1979, and on
19 May 1980) for:

* willfully disobeying a lawful order from his superior noncommissioned officer
* being disrespectful in language towards a superior noncommissioned officer
* possessing three grams of marijuana
* being derelict in his duties
* failing to be at his appointed place of duty

6.  On 2 October 1979, the applicant's commander initiated a bar to reenlistment against the applicant.  The Assistant Chief of Staff, Personnel, approved the bar to reenlistment on 14 November 1979.

7.  On 19 June 1980, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200, chapter 14 (Misconduct), paragraph 14-33b, based on frequent incidents of a discreditable nature with civil or military authorities.  The applicant was advised of his rights and the separation procedures involved.

8.  On 6 August 1980, the applicant was notified that a board of officers had been appointed to determine if he should be discharged.  He was advised of his rights, including his right to representation by counsel, even if he was absent.  The applicant indicated that witnesses on his behalf would be determined by his counsel.

9.  On 26 August 1980, a board of officers convened to determine if the applicant should be discharged from the U.S. Army due to misconduct based on frequent incidents of a discreditable nature with civil or military authority.

	a.  The Summarized Record of Proceedings show the applicant was represented by counsel.  His battalion commander, company commander, platoon sergeant, and squad leader testified at the Board.  Counseling statements and the applicant's record of NJP were introduced as evidence.  The applicant testified indicating that he was a good Soldier, but he began to experience harassment and racial prejudice from his superiors.  He stated that he attended human relations counseling that sometimes caused him to be late for formation.  He acknowledged that he was prone to outbursts of anger.

	b.  The board found the applicant did commit the misconduct of frequent incidents of a discreditable nature with military authorities and recommended the applicant be discharged from the Army with an under other than honorable conditions discharge.

10.  On 5 September 1980, the separation authority approved the board's recommendation for discharge of the applicant and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b, for misconduct based upon frequent incidents of a discreditable nature with civil or military authority with an under other than honorable conditions discharge.

11.  The applicant's DD Form 214 shows he was discharged on 23 September 1980 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct - frequent incidents of a discreditable nature with civil or military authorities with service characterized as under other than honorable conditions.  He completed 1 year, 9 months, and 12 days of net active service this period.

12.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

13.  In support of his application the applicant provides three letters and four certificates that show he completed the:

* Power House Residential Treatment Program on 23 December 2011
* TEECH Foundation's Environmental Services "Green" Cleaning Program on 11 March 2012
* Habilitative Systems, Inc., Low-Intensity Residential Program on 28 April 2012

14.  Army Regulation 635-200, in effect at the time, 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, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 provides that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be reviewed and upgraded because he was discharged for "Misconduct - frequent incidents of a discreditable nature with civil or military authority"; however, he was not involved in any incident with civil authorities.  He has also recently turned his life around and is striving to be a productive member of society.

2.  The applicant's administrative discharge under the provisions of Army Regulation 635-200 based on misconduct - frequent incidents of a discreditable nature with civil or military authority was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reason therefore was appropriate and equitable.

3.  The specific provision of the Army regulation that the applicant was discharged under shows that it governs the separation of members for misconduct based on frequent incidents of a discreditable nature with civil or (emphasis added) military authority.  While there is no evidence of record that shows the applicant was involved in any incidents of a discreditable nature with civil authority, the evidence of record clearly shows the applicant had a record of frequent incidents of a discreditable nature involving military authority.  Thus, the narrative reason for the applicant's discharge is proper and correct.

4.  The evidence of record shows the applicant completed less than 1 year and 10 months of his 4-year reenlistment commitment, he received NJP on five occasions during this period of service, and a bar to reenlistment was imposed against him by his commander.  Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

5.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

6.  Although the applicant requested a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing.  Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete, that only sworn testimony can provide the necessary information.  This case was not so complex that a formal hearing is required.

7.  In view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120010252



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ABCMR Record of Proceedings (cont)                                         AR20120010252



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