IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011619 


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 be upgraded to honorable and that the narrative reason for separation on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 27 August 1982 be changed.

2.  The applicant states the narrative reason is a lie.  He states he was never in trouble with civil or military authorities.  He was lied to because he was told his discharge would be a general discharge.  He states he was young and stupid and upset, plus he did not know what to do or how to do it.

3.  He states Lieutenant Colonel (LTC) D_____ denied his emergency leave.  His captain granted his leave and after returning from leave nothing was said about his going on leave.  After Colonel (COL) R___ left the base for 2 weeks, 
LTC D_____ gave him a special court-martial where he was found guilty and sentenced to 6 months at the retraining brigade.  Within 4 months, COL R___ granted clemency and 1 month later dropped all charges against him.  He would have stayed in the military if this had not happened to him.  He found out later LTC D_____ was forced out of the military because he had done this to other Soldiers.  He feels he was robbed of a career.  Today he has a Bachelors and a Masters degree and has owned his own business in the plumbing field for 
18 years, employing two additional people.

4.  The applicant provides no additional evidence 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.  He enlisted, age 19, in the Regular Army on 12 November 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 10 April 1981, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 17 March to 8 April 1981.   The NJP was imposed by LTC D_____ (not spelled the same as in the applicant's statement).

4.  On 12 June 1981, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from 20 April to 7 May 1981.  He was sentenced to be confined at hard labor for 2 months and to forfeit $334.00 per month for 2 months.

5.  On 15 June 1981, he and his attorney filed a petition for clemency.  On 
15 July 1981, the convening authority, COL R___, granted the petition.  On 
15 July 1981, the convening authority approved the sentence; however, he suspended the unexecuted portion of the sentence to 2 months of confinement at hard labor for 3 months, at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

6.  On 21 July 1981, he was assigned to the U.S. Retraining Brigade, Fort Riley, KS.

	a.  On 28 July 1981, he received a Social Work Evaluation conducted by a Medical Service Corps Social Work Officer.  The examiner indicated the applicant was having family problems and wanted a discharge, any kind, as soon as possible.  His wife had a miscarriage in May 1981 and needed him emotionally.  Both his and his wife's parents were having marital problems.   The examiner indicated the applicant could possibly qualify for a hardship discharge; however, the applicant stated this would take too long.  The examiner stated his impulsivity resulted in the use of poor judgment.  Intentional misconduct was to be expected from this Soldier.

	b.  On 5 August 1981, he appeared before a Cadre Review Board.  The board found he had put forth no effort to complete his training.  He wanted out of the Army and had been doing everything, short of actual disobedience/disrespect, to get attention.  He had been formally counseled twice for shirking and verbally counseled several times for his acts of misconduct.  He had been counseled on the possible negative effects an under other than conditions discharge could have on his future.  The applicant stated he understood this but he did not want to retrain or stay in the Army.  He stated he wanted to get out and that this had been his desire since he entered the program.  The board recommended he be discharged.

7.  On 13 August 1981, his commander requested the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct because of frequent incidents of a discreditable nature.   He was sent to the retraining brigade for the purpose of receiving correctional training and treatment necessary to return him to duty.  However, his actions since arrival precluded accomplishment of the objective as evidenced by his behavior and attitude.  He had demonstrated little desire for returning to duty.  He had received considerable counseling since his arrival by social workers, leadership team, and unit cadre.  He did not respond favorably to this counseling nor to duties given to him.  He did not meet the criteria for further rehabilitation attempts.

8.  On 14 August 1981, his commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct due to his frequent incidents of a discreditable nature with military authorities.  The commander informed him of his right to:

* consult with counsel
* present his case before a board of officers
* submit statements in his own behalf
* consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

9.  On 18 August 1981, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  He waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  

10.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  The applicant also acknowledged that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

11.  On 25 August 1981, the appropriate authority directed he be discharged under the provisions of Army Regulation 635-200, chapter 14, waived the requirement for rehabilitative transfer, and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 27 August 1981, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14.  The narrative reason shown on his 
DD Form 214 is "frequent involvement in incidents of a discreditable nature with civil or military authorities."  He had completed 7 months and 3 days of active service that was characterized as under other than honorable conditions.  He had 72 days of time lost.

13.  There is no evidence in his record of him being placed on emergency leave during his period of service.

14.  He applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 18 June 1982, the ADRB reviewed and denied his request for upgrade.  The ADRB determined that his discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Included in the categories for discharge was frequent involvement in incidents of a discreditable nature with civil or military authorities.  Action was to be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.
	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  His age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  There is no record of the applicant having been placed on emergency leave.  There is no correlation in the record of emergency leave and his two periods of AWOL. He contends LTC D_____ decided to give him a special court-martial, but there is no record of this.  A LTC D_____ did impose NJP on him.

3.  He contends COL R___ approved his request for clemency and dropped all the charges against him.  COL R___ did approve his request; however, the court-martial order shows COL R___ suspended the unexecuted portion of his confinement only.  There is no evidence COL R___ dismissed any charges against the applicant.

4.  He contends the narrative reason for his discharge is a lie.  The record shows he accepted NJP on one occasion and was convicted by a special court-martial.  In addition, a Cadre Review Board showed he had been formally counseled twice for shirking and verbally counseled several times for his acts of misconduct.   Therefore, his record shows frequent involvement in incidents of a discreditable nature with military authorities and the reason for his discharge is appropriate.

5.  In his 7 months and 3 days of active service, he had accepted NJP once and had been convicted by a special court-martial.  He had 72 days of time lost.  Therefore, his short period of service was clearly unsatisfactory.

6.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

7.  The post-service accomplishments and conduct he describes are noted.  However, his good post-service conduct does not negate the reason for his discharge nor the quality of his service.  

8.  The narrative reason for separation correctly reflects the reason he was discharged and there is no basis to change it on his DD Form 214.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable discharge or to a general discharge under honorable conditions.

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)                                         AR20120011619



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ABCMR Record of Proceedings (cont)                                         AR20120011619



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