BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120013667 


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 an honorable discharge.  

2.  The applicant states he is now a reformed alcoholic.  He believes he is a different person and his DD Form 214 (Certificate of Release or Discharge from Active Duty) should reflect that change.

3.  The applicant provides a statement 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's records show he enlisted in the New Jersey Army National Guard (NJARNG) on 19 August 1977 and he held military occupational specialty 94B (Food Service Specialist).  

3.  Orders Number 80-55, dated 1 May 1979, issued by Headquarters, First U.S. Army, ordered him to active duty with a report date of 21 June 1979.  On 20 June 1979, he was discharged from the NJARNG under honorable conditions.

4.  On 21 June 1979, he entered active duty at Fort Dix, NJ.  On 5 July 1979, he was assigned to the 2nd Battalion, 63rd Armor, Fort Riley, KS.

5.  On 1 November 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification each of:

* being AWOL from 1 to 10 September 1979
* failing to report to his appointed place of duty at the prescribed time
* disobeying a lawful order

6.  On 11 February 1980, he received NJP under the provisions of Article 15, UCMJ, for one specification each of:

* disobeying a lawful order
* being disrespectful in language to a noncommissioned officer (NCO)

7.  On 26 March 1980, he was convicted by a summary court-martial of one specification each of:

* failing to report to his appointed place of duty at the prescribed time
* breaking restriction

He was sentenced to forfeiture of $299.00 for 1 month and confinement for 30 days.

8.  On 1 April 1980, he was assigned to the U.S. Army Retraining Brigade (USARB), Fort Riley, KS.

9.  On 23 April 1980, he received NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order.

10.  On 2 May 1980, he received NJP under the provisions of Article 15, UCMJ, for one specification each of:

* being AWOL from 26 to 29 April 1980
* being disrespectful in language to an NCO
* disobeying a lawful order

11.  Between 20 April and 12 May 1980, he was counseled by various members of the USARB for repeatedly failing to report to his appointed place of duty, being late to formation, not being prepared for inspections, being disrespectful to NCOs, falling asleep in class, and for being AWOL.

12.  On 13 May 1980, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - frequent incidents of a discreditable nature with civil or military authorities.  Specifically, he cited the applicant's Article 15's, summary court-martial, and his continued misconduct that established a pattern of willful disobedience to authority and negatively influenced the behavior of others in the unit.  

13.  On 13 May 1980, the applicant acknowledged receipt of the commander's intent to separate him.  On 15 May 1980, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment, the possible effects of this discharge, and the procedures and rights available to him. He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived his right to an administrative separation board and declined to submit statements on his own behalf.

14.  On 15 May 1980, his senior commander recommended approval of the discharge action.

15.  On 15 May 1980, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-133b, for misconduct - frequent involvement in incidents of a discreditable nature and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 22 May 1980, he was discharged accordingly.

16.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, by reason of misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service.  He completed 9 months and 27 days of net active service with 34 days of time lost due to AWOL and confinement.

17.  There is no evidence in his records that shows he asked his chain of command for assistance in dealing with any issues/problems related to the use of alcohol or that he was ever disciplined for issues related to the use of alcohol.

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

19.  The applicant provides a statement of support, dated 18 June 2012, wherein the assistant pastor of a church stated she had known the applicant for 46 year and that he stopped drinking alcohol since he was mugged and hospitalized 23 years ago.

20.  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, commission of a serious offense, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Upon determination that a member is to be separated with a discharge under other than honorable conditions, the approving authority will direct reduction to the lowest enlisted grade.

21.  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.

22.  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.

23.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on four occasions for being AWOL on two occasions, failing to report, disobeying lawful orders on four occasions, being disrespectful to NCOs on three occasions and the summary court-martial conviction he received for failing to report and breaking restriction.  Accordingly, his commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  

3.  The DD Form 214 reflects a Soldiers status at the time of his discharge.  There are no provisions to change a DD Form 214 to reflect conditions that occurred after the date of discharge.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled 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)                                         AR20120013667





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ABCMR Record of Proceedings (cont)                                         AR20120013667



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