IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120020834 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he made mistakes
* he chose to get involved with the wrong people
* he broke the law
* he has no excuses for his actions

3.  The applicant provides no additional documentary 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 enlisted in the Regular Army on 22 September 1978 for a period of 3 years.

3.  Records show he was the subject of the following civil offenses:

* a burglary of a tavern on 17 October 1979
* arrested on 18 October 1979 for stealing $30.00 from the cash register of a bar

4.  On 18 October 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty and for failing to obey a lawful order.

5.  On 9 November 1979, he accepted NJP under Article 15, UCMJ for larceny ($400.00 from his roommate) and unlawful entry.

6.  He was counseled for:

* being late for the physical training test
* being late and not prepared for Color Guard 
* missing Color Guard detail
* being late for funeral detail
* not being prepared for a formal room inspection
* failing to report for duty
* failing to clean his sleeping area for inspection 

7.  On 13 November 1979, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

8.  On 13 November 1979, the applicant consulted with counsel and he was advised of his rights.  He waived consideration of his case by an administrative board and waived representation by counsel.  He also elected not to submit a statement in his own behalf.


9.  On 26 December 1979, the separation authority approved the applicant's recommendation for separation and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 28 December 1979, he was accordingly discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, due to frequent incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 3 months, and 7 days of creditable active service.

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

12.  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.  Since his record of service included numerous adverse counseling statements and two NJPs, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.
2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

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

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120020834



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ABCMR Record of Proceedings (cont)                                         AR20120020834



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