IN THE CASE OF:	   

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120020802 


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 correction of his military records by showing his under other than honorable conditions discharge was upgraded to honorable, or to general, under honorable conditions.

2.  The applicant states that when he volunteered to serve in the Army, he knew he was taking an oath and was willing to place his life in the balance for the security of his country.  At the time he was young minded and immature.  He was very impressionable.  Like most young men, he did his share of horsing around and getting involved with people, places, and things which were not very becoming to a Soldier.  He was just learning his way through life.  

3.  He contends his first and foremost focus was on his duty and being the best Soldier he could be.  When he left his initial training he expected to go directly to airborne training.  Instead, he was assigned to an airborne unit at Fort Bragg, NC.  As a non-airborne Soldier he endured harassment and was bullied on a daily basis.  It was demoralizing.  He continually inquired about when he would be going to airborne training.  In order to have some relief from the harassment, he moved off post.  

4.  He also states he began to drink and smoke.  This led to his being late for morning formation.  After being late for the second time, he was required to undergo a urinalysis screening and was then escorted to the county jail.  After a couple of days, he was brought before the company commander who asked about his problem.  The applicant explained his desire to attend airborne training and the harassment that he received.  The commander offered him the option of transferring to a non-airborne unit or being discharged.  He opted for the discharge.  He feels that he was done an injustice as a result of a personal vendetta.  His discharge has been a blemish that has been on his heart for 
26 years and he needed the peace that comes with submitting this request.  He appreciates the Board's time and consideration in this matter.  He realizes he could have acted better and that his decisions may not have been very sound; but, he honestly does not think he deserves a less than honorable discharge.

5.  The applicant provides no additional documentation.

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.  On 30 October 1984, the applicant, at 19 years and 8 months of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 36C (Wire System Installer/Operator).

3.  On 4 March 1985, while in advanced individual training at Fort Gordon, GA, the applicant accepted nonjudicial punishment (NJP) for wrongful possession of marijuana.

4.  On 16 April 1985, the applicant departed Fort Gordon to duty at Fort Bragg, NC.  On 9 May 1985, he was assigned to Company A, 82nd Signal Battalion.

5.  The applicant accepted the following NJPs:

	a.  13 August 1985: for possession of marijuana, knowingly signing a false sick slip with intent to deceive, and making a false statement;

	b.  7 January 1986: for being absent from his place of duty on four separate days;

	c.  22 January 1986: for failing to go to his place of duty, for being absent without authority on two separate days, and for wrongful possession of a pair of nunchucks; and

	d.  29 January 1986: for selling, without proper authority, a helmet the property of the U.S. military.

6.  On 16 January 1986, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.

7.  On 28 January 1986, the applicant was notified of the commander's intention to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The commander cited the applicant's positive urinalysis of 13 August 1985 and multiple NJPs as the basis for this action.  His repeated misconduct has been an obvious defiance of authority.

8.  On 28 January 1986, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

9.  On 19 February 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a 
DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).

10.  Accordingly, on 25 February 1986, the applicant was discharged under other than honorable conditions.  He completed 1 year, 3 months, and 26 days of creditable active duty service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing his under other than honorable conditions discharge was upgraded to honorable, or to general, under honorable conditions because he was young and immature at the time.

2.  The record shows the applicant accepted four NJPs for misconduct, one of which was for possession of marijuana while still in training.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 20 years of age when he enlisted.  He had satisfactorily completed training.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

6.  The applicant's argument that his misconduct was due to demoralizing harassment is unsupported by any documentary evidence.  In fact, his misconduct started before he had even finished his initial training.

7.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20120020802





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ABCMR Record of Proceedings (cont)                                         AR20120020802



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