IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130002896 


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 from under other than honorable conditions.

2.  The applicant states he was unfairly targeted and poorly represented.  Thirty years ago he could not prove this because no one would listen to a private (PV1)/E-1.  He also states that he can no longer work as a construction laborer and needs an upgrade so he can go back to school and retrain for a new job.

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's record shows he enlisted in the Regular Army on 12 July 1977.  He completed basic combat training and advanced individual training and he was awarded military occupational specialty 27E (TOW Dragon Repairer).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, he held the rank/grade of PV1/E-1 at the time of his discharge.

3.  His record also shows he was counseled on numerous occasions for a myriad of misconduct including:

* failing to report to numerous formations
* failing to report to his place of duty at the appointed time on numerous occasions
* failing to follow lawful orders from a noncommissioned officer
* having a poor attitude toward work
* failing to maintain to maintain his personal appearance, clothing, and equipment

4.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for violating the following articles of the UCMJ by committing the offenses shown:

* Article 86, failing to go at the time prescribed to his appointed place of duty on numerous occasions
* Article 128, assaulting another Soldier by pushing him
* Article 91, willfully disobeying lawful orders issued by superior noncommissioned officers on numerous occasions
* Article 86, breaking restriction
* Article 86, absenting himself from his unit without authority

5.  On 28 February 1979, the applicant was arrested and charged with aggravated assault for stabbing another Soldier several times with a large knife and then fleeing the scene.

6.  As a result of this incident, the applicant's promotion to private first class (PFC)/E-3 was blocked and his Platoon Leader and Platoon Sergeant recommended he be considered for separation from the Army due to his frequent acts of misconduct.



7.  On 27 April 1979, the applicant's unit commander notified him of his intent to initiate action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, for frequent incidents of a discreditable nature with civil or military authorities.  Specifically, the commander cited the applicant's charges for several offenses from traffic violations to carrying an unregistered firearm and aggravated assault.  She noted the applicant had been counseled numerous times about these charges and his poor attitude.  The applicant not only involved himself with civilian authorities, but carried his misconduct into his job and military life.

8.  After having been advised by legal counsel, the applicant requested consideration of his case and a personal appearance before a board of officers, requested counsel, indicated he would submit statements in his own behalf, and indicated he understood the ramifications of the separation action.  His record is void of any documentation submitted by the applicant in his own behalf.

9.  The applicant's unit commander recommended he be considered by a board of officers for separation from the service under the provisions of paragraph 14-33b of Army Regulation 635-200 for misconduct – frequent incidents of a discreditable nature with civil or military authorities – and an established pattern of shirking.  The commander noted the applicant's conduct had been marginal at best.  He was unwilling and unable to meet even the minimum standards to be an average Soldier.  Even though he had been counseled on many occasions, the applicant's conduct, attitude, and appearance continued to be sub-par and a detriment to the good discipline and morale of the unit.  The battalion and brigade-level commanders recommended approval.

10.  On 14 June 1979, the applicant was informed that a board of officers had been directed to investigate his case to determine whether he should be discharged from the service and that the board would meet on 3 July 1979.  He was also informed that a lawyer had been appointed to act as counsel for him and he was given the lawyer's name and location.  The applicant acknowledged receipt of this notification by authenticating the document with his signature.

11.  The board convened on 3 July 1979 and all members and witnesses were present.  The board carefully considered the evidence before it and found that the applicant had been involved in frequent incidents of a discreditable nature with military and civil authorities.  As a result, the board recommended the applicant be eliminated from the military service for reason of misconduct because of frequent incidents of a discreditable nature with military and civil authorities, and furnished an under other than honorable conditions discharge certificate.  The convening authority approved the findings and recommendation of the board.

12.  On 19 July 1979, the separation authority approved the applicant's separation action with the issuance of an Under Other Than Honorable Conditions Discharge.  He also directed the applicant be reduced from PV2/E-2 to PV1/E-1.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), with a separation program designator code of JKA (misconduct – frequent incidents of a discreditable nature with civil or military authorities).  His service was characterized as under other than honorable conditions.

14.  The applicant's record is void of any evidence and he has not provided any evidence showing he was wrongfully targeted or poorly represented by counsel.

15.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

16.  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 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.  An under other than honorable conditions discharge is normally appropriate for Soldiers discharged under this chapter.

17.  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.



18.  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's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record is void of any evidence and he has not provided any evidence showing he was wrongfully targeted or poorly represented by counsel.

3.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow him to remain on active duty and continue to serve.  The evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.
Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130002896





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ABCMR Record of Proceedings (cont)                                         AR20130002896



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