IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120017134 


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 served for 2 years before they said he was unable to adapt to military life. 

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 initially enlisted in the Regular Army (RA) on 3 April 1979.  He completed training and he was awarded military occupational specialty 64C (Motor Transport Operator).
3.  His record further shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Machine Gun Bar.

4.  On 14 January 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order.

5.  On 12 March 1980, he was convicted by a special court-martial of two specifications of wrongfully selling marijuana.  His adjudged sentence included a reduction to the lowest enlisted grade, confinement at hard labor for 4 months, and a forfeiture of pay for 4 months.

6.  On 7 May 1980, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order. 

7.  On 5 June 1980, the convening authority approved his court-martial sentence but ordered a lesser sentence of reduction, forfeiture of pay, and confinement at hard labor for 2 vice 4 months. 

8.  On 13 February 1981, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana. 

9.  On 27 May 1981, he again accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 23 to 25 May 1981.

10.  His service record reveals a history of negative counseling by his chain of command for:

* Lack of motivation
* Bad attitude
* Indecent acts
* Failure to report
* Use of contraband
* Poor attitude and behavior

11. On 13 June 1981, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

12.  On 15 June 1981, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit a statement on his own behalf.  The applicant further indicated he understood that:

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

13.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to misconduct- frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant was sent to the retraining brigade to receive correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and ability.  However, his actions precluded accomplishment of this objective as evidenced by his resume of behavior and attitude.  He had demonstrated little desire to return to duty.  He received considerable counseling since his arrival but his actions precluded rehabilitation and he did not respond favorably. 

14.  On 23 and 24 June 1981, his intermediate and senior commanders reviewed the recommended separation action and recommended approval.

15.  On 2 July 1981, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was accordingly discharged on 17 July 1981. 

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 17 July 1981 as a private/E-1 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct – frequent incidents of a discreditable nature with military authorities, with an under other than honorable conditions characterization of service.  This form further 

shows he completed 2 years, 2 months, and 3 days of creditable active service during this period, with time lost from 12 March to 10 April 1981 and 23 to 
25 May 1981.

17.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

18.  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, and convictions by civil authorities.  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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  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.  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 contends his under other than honorable conditions discharge should be upgraded.

2.  His record of service shows a history of misconduct that included one court-martial conviction, four instances of NJP, one instance of AWOL, a period of confinement, and an extensive history of negative counseling.  He demonstrated little desire to return to duty and despite receiving considerable counseling, he did not respond favorably.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
3.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is no basis for granting the applicant 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)                                         AR20120017134





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ABCMR Record of Proceedings (cont)                                         AR20120017134



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