BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130000759 


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.

2.  The applicant states, in effect:

	a.  Much of his past is clouded and many years ran into each other as he fumbled without direction.  His struggle and battle with alcohol has cost him many relationships, friends, family members, and jobs.  It destroyed every aspect of his life.  When he met his pastor, he realized there was a way to be delivered from all the pain and suffering of the past and live a life full of peace and joy.

	b.  About 4 years ago, he decided he was going to do whatever it took to have a life where he could love and care for others and be loved.  He has reunited with his family.  With his pastor's mentoring, he was able to see clearly that this type of life was waiting for him.  He began to live his life as best as he possibly could in accordance with the values and morals he has today, and he continues to do so.

	c.  When he was in the Army, he was young and foolish and he made many mistakes.  He can now honestly say he has grown up and made the necessary changes in his life to turn it around.  He is married and life is going well.  He has spent many years fumbling around and watching the years go by and he can't express how valuable an upgrade of his discharge would be to him at this stage of his life.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and six statements 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 Regular Army on 19 November 1980 when he was 17 years of age.  He held military occupational specialty was 11B (Infantryman).  On 28 February 1981, he was assigned to the 2nd Battalion, 6th Infantry, Berlin Brigade, Germany.  On 1 October 1981, he was promoted to private first class/E-3. 

3.  On 22 April 1982, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification of disobeying a lawful order. 

4.  On 6 October 1982, he was convicted by a special court-martial of two specifications of violating a general regulation by selling rationed items on the black market.  He was sentenced to reduction to private/E-1, a forfeiture of $378.00 pay for 2 months, and confinement for 75 days.

5.  On 21 October 1982, he was assigned to the 3rd Battalion, U.S. Army Retraining Brigade (USARB), Fort Riley, KS.

6.  On 16 November 1982, he received NJP under the provisions of Article 15, UCMJ, for one specification of disobeying a lawful order. 

7.  On 22 November 1982, 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), paragraph 14-33b, for misconduct - frequent incidents of a discreditable nature with civil or military authorities.  
8.  On 22 November 1982, the applicant acknowledged receipt of the commander's intent to initiate separation action against him.  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 consideration of his separation action by a board of officers and declined to submit a statement in his own behalf.

9.  His immediate commander subsequently submitted a request for his discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct - frequent incidents of a discreditable nature with civil or military authorities.  His commander stated since his arrival at the USARB, he had demonstrated little desire for returning to duty as evidenced by his attitude and behavior.  He had received considerable counseling and had not responded favorably to the counseling or the duties given him.  The commander recommended the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 23 November 1982, his senior commander recommended approval of the discharge action.

11.  On 8 December 1982, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct - frequent involvement in incidents of a discreditable nature and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 10 December 1982, he was discharged accordingly.

12.  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 1 year, 11 months, and 23 days of net active service.

13.  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.


14.  The applicant provides six statements of support, dated between 5 March and 17 December 2012, wherein his pastor and several members of his church stated they have known the applicant between 3 and 5 years.  He is a pillar of his community, honest, responsible, reliable, and he has maintained his sobriety for the past 4 years.

15.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

16.  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.

17.  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 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 two occasions for disobeying a lawful order, and the special court-martial he received for two specifications of violating a general regulation.  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 type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  The applicant contends that his discharge should be upgraded because he was young and foolish at the time of his service.  Records show that he was almost 19 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  Although the applicant may have recently changed his behavior and conduct, it does not mitigate the fact that he engaged in frequent acts of misconduct during his military service.

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also 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)                                         AR20130000759



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ABCMR Record of Proceedings (cont)                                         AR20130000759



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