IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120020524 


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 general discharge under honorable conditions to an honorable discharge.

2.  The applicant states he was only 18 years old, he never received counseling, and rehabilitation was not offered.  Illegal substances were readily available on base.  He is now 49 years old and disabled.  Having his discharge changed would be helpful and a morale booster.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Regular Army on 21 May 1981 at 18 years of age.  He was assigned to the 2nd Battalion, 1st Basic Training (BT) Brigade, Fort Jackson, SC, for BT.

3.  On 9 June 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification of wrongfully possessing marijuana.

4.  On 21 July 1981, he was assigned to the 1st Training Battalion, U.S. Army Quartermaster Brigade, Fort Lee, VA, for advanced individual training (AIT).

5.  On 4 September 1981, he received NJP under the provisions of Article 15, UCMJ, for one specification of wrongfully and dishonorably copying answers from an unauthorized paper while undergoing a written examination.

6.  He subsequently completed AIT and he was awarded military occupational specialty 76Y (Unit Supply Specialist).  On 15 October 1981, he was assigned to the 1st Battalion, 39th Field Artillery, Fort Bragg, NC.

7.  On 5 August 1982 and 19 August 1982, respectively, he was counseled by his supervisor for failing to repair and for sleeping on guard duty.  He was given 3 days of extra training for the first offense and told a subsequent violation of sleeping on guard duty could result in action being taken against him under the UCMJ.

8.  On 23 August 1982, he received NJP under the provisions of Article 15, UCMJ, for one specification each of:

* disobeying a lawful order
* appearing on post without his uniform
* speeding on post
* being derelict in the performance of his duties by failing to keep his weapon with him

9.  On 23 November 1982, he received NJP under the provisions of Article 15, UCMJ, for one specification each of:

* being derelict in the performance of his duties by negligently failing to maintain physical security over his weapon
* falsely presenting the military driver's license and defensive driving card of another Soldier as his and unlawfully attempting to withdraw a military vehicle from the motor pool

10.  On 15 February 1983, he was counseled by his immediate commander for constantly displaying an apathetic attitude towards his position in the Army.  The commander stated he received four Article 15's for various incidents of misconduct and still failed to show any interest in his job or the Army, or recognize the need to take action to correct his defective attitude.  He further stated failure to correct these deficiencies could result in separation action being taken against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

11.  On 13 May 1983, he was apprehended by civil authorities, charged with the felony possession of lysergic acid diethylamide (LSD), and confined by civil authorities.  He was returned to military control on 1 June 1983.

12.  On 29 June 1983, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  Specifically, he cited the applicant's discreditable involvement with civil and military authorities and conduct prejudicial to the good order and discipline of the Army and that he was recommending the issuance of a General Discharge Certificate.  The commander also advised him of the procedures and rights available to him.

13.  On 29 June 1983, the applicant acknowledged receipt of the discharge action, declined to consult with legal counsel, and declined to submit a statement in his own behalf.

14.  On 15 July 1983, the applicant's immediate commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct, with a general discharge.  The commander stated the applicant's duty performance had been unsatisfactory, he was unable to follow directions, and he failed to be at his appointed place of duty at the required time.  His commander stated his performance had been very poor, he had a long history of misconduct, and his last act of misconduct was so serious in nature that it warranted disposition under the provisions of Army Regulation 635-200, chapter 14.

15.  On 19 July 1983, his immediate commander recommended waiver of the rehabilitative transfer requirement and stated the applicant was obviously resisting all rehabilitation attempts and rehabilitation would not produce the quality Soldier wanted by the U.S. Army.  The waiver was subsequently approved.

16.  On 1 August 1983, his senior commander recommended approval of his separation action with the issuance of a General Discharge Certificate.

17.  On 9 August 1983, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct – with the issuance of a General Discharge Certificate.  On 17 August 1983, he was discharged accordingly.

18.  His DD Form 214 shows he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – pattern of misconduct.  He completed 2 years, 2 months, and 9 days of net active service with 18 days of lost time due to confinement by civil authorities.

19.  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.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 1 states the requirement for a rehabilitative transfer may be waived by the separation authority if it would be inappropriate because the member was resisting rehabilitation attempts or rehabilitation would not be in the best interests of the Army as it would not produce a quality Soldier.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant engaged in a pattern of misconduct.  He demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on four separate occasions for various acts of misconduct.  In addition, he was subsequently confined by civil authorities for almost 3 weeks and charged with felony possession of LSD.  Accordingly, his immediate 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 requirement for a rehabilitative transfer was waived and the type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Notwithstanding his contention that he was never counseled, the evidence of record shows he was counseled on several occasions about his inappropriate behavior and his receipt of NJP while in BT, AIT, and at his first duty station would also serve as notice that he needed to modify his behavior.

4.  The applicant contends his discharge should be upgraded because he was only 18 years old at the time of his service.  Records show he was over 20 years of age at the time of his last offense.  Regardless, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Based on his record of misconduct, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel; therefore, he is not entitled to an honorable 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 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)                                         AR20120020524



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ABCMR Record of Proceedings (cont)                                         AR20120020524



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