IN THE CASE OF:
BOARD DATE: 26 September 2013
DOCKET NUMBER: AR20130003494
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 the characterization of his service is misleading.
3. The applicant does not provide any 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 records show he enlisted in the Regular Army on 15 July 1980 and he held military occupational specialty 76Y (Unit Supply Specialist). He was awarded or authorized the Army Service Ribbon.
3. On 13 May 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on four separate occasions.
4. On 29 May 1981, he departed his Fort Campbell, KY, unit in an absent without leave (AWOL) status and on 16 June 1981, he was arrested by civil authorities in Florida. He was confined pending charges for grand auto theft.
5. He returned to military authorities on 14 July 1981 after having been confined for 23 days in a county jail.
6. On 21 July 1981, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 29 May 1981 to 16 June 1981.
7. On 7 April 1982, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana.
8. On 7 May 1982, he departed his unit in an AWOL status but he surrendered to military authorities on 20 May 1982.
9. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain:
a. Orders 160-23, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 9 June 1982, ordering his discharge from the Army, effective 14 June 1982.
b. A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 14 June 1982 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct - frequent incidents of a discreditable nature with civil or military authorities, in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service. This form also shows he completed a total of 1 year, 9 months, and 13 days of creditable active service and he had lost time from 21 May to 16 June 1981, 16 June to 13 July 1981, and 7 May 1981.
10. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
11. 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.
a. 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 members 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.
b. 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 applicants record is void of the complete facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged on 14 June 1982 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct - frequent incidents of a discreditable nature with civil or military authorities, in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.
2. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed that his 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.
3. The applicant's record of service reveals a history of misconduct that included multiple instances of AWOL, multiple instances of NJP, a period of civilian confinement, and a civilian charge. It appears he demonstrated little desire to perform his duties to standards. Accordingly, his chain of command initiated separation action against him.
4. Contrary to his contention that the characterization of his service is misleading, his 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. Therefore, he is not entitled to the 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.
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