IN THE CASE OF:	  

		BOARD DATE:  21 November 2013

		DOCKET NUMBER:  AR20130005283 


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 general under honorable conditions.

2.  The applicant makes no additional statement.

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 14 February 1978.

3.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on four occasions for the following offenses:

	a.  15 January 1978, for failing to obey a lawful order issued by the military police to leave the area of a drug bust and for wrongfully and unlawful endeavoring to impede the military police in a drug bust on 11 January 1978;

	b.  14 November 1978, for disobeying a lawful command from a noncommissioned officer (NCO) on the same date;

	c.  4 May 1979, for orally communicating disrespectful language to a civilian in a abusive manner on 30 April 1979; and

	d.  3 July 1979, for stealing two pairs of Foster Grant sunglasses, a value of $19.60, from the Post Exchange on 17 June 1979.

4.  On 13 July 1979, the applicant was notified by his unit commander that action was being initiated to separate him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14.  The reason for the proposed action was the applicant's established pattern of misconduct, disrespect to NCO's, disrespect to a civilian employee, interference with the military police in the performance of their duties, and shoplifting.  The commander advised the applicant that he was being recommended for a general discharge.

5.  Also on 13 July 1979, his company commander recommended his discharge for misconduct under the provisions of Army Regulation 635-200, paragraph 14, due to a definite established pattern of misconduct.  He cited the applicant's receipt of three Article 15's for disrespecting NCO's, interfering with military police, and being abusive to a local vendor, and a fourth Article 15 for shoplifting. 
He stated the applicant was counseled numerous times on his behavior and showed no change.  The applicant received four Article 15's and a bar to reenlistment in only 17 months of active service.

6.  On 17 July 1979, the applicant acknowledged receipt of the proposed separation action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counsel, the applicant declined his rights to legal counsel and to submit a statement in his own behalf.

7.  On 27 July 1979, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 17 August 1979, he was discharged accordingly.  He completed 1 year, 6 months, and 4 days of net active service during this period.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, 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 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

11.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

The evidence of record shows the applicant received four Article 15's and a bar to reenlistment in only 17 months of active service.  He was therefore discharged under other than honorable conditions by reason of misconduct.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to 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 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)                                         AR20130005283



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ABCMR Record of Proceedings (cont)                                         AR20130005283



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