IN THE CASE OF:
BOARD DATE: 24 September 2013
DOCKET NUMBER: AR20130002333
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 discharge under other than honorable conditions to an honorable discharge.
2. The applicant states he has lived with the shame of not earning an honorable discharge for over 30 years. His son just joined the Navy and he would like to be able to place an Honorable Discharge Certificate alongside his son's.
3. The applicant provides no additional 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 28 February 1979. He completed training as a field switchboard operator and basic airborne training and was assigned to the 82d Airborne Division.
3. He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 1 December 1980 for leaving his place of duty without authority and on 18 December 1980 for sleeping on guard duty on 2 consecutive days. A summary court-martial found him guilty of possession of marijuana. The findings and sentence were approved on 25 February 1981.
4. The applicant was confined and assigned to the Retraining Brigade at Fort Riley, Kansas. He was assigned to three different units within a month.
5. There is no documentation pertaining to his separation process in the available records. 9th Infantry Division and Fort Lewis Special Orders 223, dated 11 August 1975, ordered his discharge under other than honorable conditions.
6. His DD Form 214 (Certificate or Release or Discharge from Active Duty) shows the authority for his discharge as Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-33b(1), and the reason for his discharge as frequent involvement in incidents of a discreditable nature with civil or military authorities.
7. On 14 February 1983, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.
8. 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 states 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's available records show he received nonjudicial punishment under the provisions of Article 15 on 1 December 1980 for leaving his place of duty without authority and on 18 December 1980 for sleeping on guard duty on 2 consecutive days. Additionally, a summary court-martial found him guilty of possessing marijuana.
2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of his discharge appears to be commensurate with his overall record of service.
3. The applicant provided no evidence or convincing argument to support his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ___X__ _
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.
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