IN THE CASE OF:	  

		BOARD DATE:	 10 October 2013 

		DOCKET NUMBER:  AR20130003175 


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, in effect, a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 12 August 1979.  He further requests upgrade of his under other than honorable conditions discharge for the period ending 7 July 1981.

2.  The applicant states he should have received a DD Form 214 prior to his reenlistment.  He further states his military service was very stressful and he needs an upgrade of his discharge in order to receive medical treatment.

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 requested, in effect, a copy of his DD Form 214 for the period ending 12 August 1979.  Although somewhat illegible, his record contains a copy of a DD Form 214 that shows he enlisted in the Regular Army (RA) on 29 December 1975 and he was honorably discharged on 12 August 1979 for immediate reenlistment.  A copy of this DD Form 214 will be provided to the applicant with these Proceedings.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  On 13 August 1979, the applicant reenlisted for a period of 3 years in pay grade E-4.

4.  Records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 23 April 1980, for wrongfully possessing a small amount of marijuana
* 18 November 1980, for being drunk and disorderly and for willfully disobeying a lawful command from his superior commissioned officer

5.  On 12 January 1981, the applicant was tried by a special court-martial.  Contrary to his plea, he was found guilty of one specification of violating Article 121, UCMJ, for stealing a leather jacket on 15 November 1980, the property of the Army and Air Force Exchange System, a value of $130.00.

6.  The applicant was sentenced to confinement at hard labor for 3 months, reduction to the lowest enlisted grade, and forfeiture of pay for 3 months.  The sentence was adjudged on 6 March 1981.  The U.S. Army Retraining Brigade, Fort Riley, KS, was designated as the place of his confinement.

7.  Records show the applicant again accepted NJP under the provisions of Article 15, UCMJ on:

* 5 June 1981, for wrongfully possessing 1.35 grams of marijuana
* 18 June 1981, for failing to obey a lawful order

8.  On 23 June 1981, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct.

9.  On 23 June 1981, the applicant acknowledged receipt of the commander's notification.  He waived consulting counsel; however, he was advised of the basis 


for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by a separation board, waived personal appearance before a separation board, and elected not to submit a statement in his own behalf.

10.  The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

11.  His intermediate commander recommended approval of the discharge action and a waiver of any further rehabilitative efforts.

12.  On 2 July 1981, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 7 July 1981, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge.  He completed 1 year, 8 months, and 9 days of net active service this period with 2 months and 15 days of time lost.

14.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  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.  The applicant's record of service subsequent to his reenlistment on 13 August 1979 shows a history of misconduct that included numerous instances of NJP under the provisions of Article 15, UCMJ and a court-martial conviction.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct diminished the quality of his service.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130003175



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ABCMR Record of Proceedings (cont)                                         AR20130003175



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