IN THE CASE OF:	  .

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130007268 


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 he was never arrested or charged with a crime by the military.  He never went to jail either.  He completed 2 years, 11 months, and 
16 days of service and he only had 16 days left before his contract expired.  He was only 17 years of age and he made some bad decisions and he accepts responsibility for his actions.  But, he never had any criminal charges filed against him.  He had some Article 15s for non-serious offenses.  He is not downplaying the offenses; however, he feels he should have been allowed to complete the remaining 16 days and separate.  He is a proud patriot who loves his country and would gladly serve again, in combat if necessary. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 13 June 1977.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 75B (Personnel Administration Specialist).  

3.  He was assigned to the U.S. Army Garrison, Fort Meade, MD.  The highest rank/grade he attained was private first class/E-3.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar. 

4.  His records show a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 16 September 1977, leaving his appointed place of duty without authority
* 11 November 1977, failing to go at the time prescribed to his appointed place of duty
* 23 November 1977, twice failing to go at the time prescribed to his appointed place of duty
* 28 December 1977, being absent without leave (AWOL) from 12 to 15 December 1977
* 18 July 1978, failing to go at the time prescribed to his appointed place of duty on four separate occasions, being AWOL from 17 to 20 April 1978, and breaking restriction 
* 4 April 1979, failing to go at the time prescribed to his appointed place of duty
* 22 February 1980, twice failing to go at the time prescribed to his appointed place of duty

5.  His records show he was frequently counseled by various members of his chain of command for various infractions including multiple instances of failing to go at the time prescribed to his appointed place of duty, being absent from the Individual Learning Lab, being AWOL, and overall resistance to rehabilitation. 

6.  His DA Form 2-1 (Personnel Qualification Record-Part II) shows he was in an AWOL and/or confined status on multiple occasions, as follows: 

* 12 December to 14 December 1977
* 14 April to 19 April 1978
* 6 August to 7 August 1979
* 30 January 1980 (confined)
* 22 April to 24 April 1980

7.  On 21 January 1980, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) for misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

8.  On 28 January 1980, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and 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 that were available to him.  He elected consideration of his case by a separation board and personal appearance before a separation board, and elected not to submit a statement on his own behalf.  The applicant further indicated he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* 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

9.  On 7 February 1980, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant's traits and habits are manifested by frequent incidents of failure to be at the time prescribed and repeated commission of petty offenses.  He had been assigned to two units and he served under various officers and noncommissioned officers but in each assignment his performance had been unsatisfactory.  Rehabilitative efforts were clearly useless in his case.  His documented and continuous failure to even be present for duty in order to accomplish the most basic of Soldier tasks is a reflection of his inaptitude and apathy.  He is immature, undisciplined, and irresponsible.  He was of no use to the Army.  He was formally and informally counseled on numerous occasions by members of his chain of command to no avail.  

10.  On 11 February 1980, the applicant's intermediate commander strongly recommended approval of the discharge action.  He stated the applicant's attitude, lack of respect for authority, and recurring acts of misconduct had been disruptive to the command.

11.  On 14 February 1980, a military lawyer reviewed the separation packet and found it legally sufficient for referral to a board of officers. 

12.  On 29 April 1980, a board of officers convened at the 85th Medical Battalion, Fort Meade, MD, to consider if the applicant should be eliminated from the service for misconduct.  The board of officers found the applicant had showed a lack of dependability and maturity by his frequent unauthorized absence and petty misconduct.  The board felt the applicant was of no value to the Army and that another rehabilitative transfer would have no impact.  The board recommended his immediate discharge with an under other than honorable conditions discharge. 

13.  On 20 May 1980, the separation/convening authority approved the findings and recommendation of the board of officers.  The separation/convening authority approved the discharge action and ordered the applicant discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  

14.  The applicant was discharged on 28 May 1980.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with service characterized as under other than honorable conditions.  This form further confirms he completed a total of 2 years, 11 months, and 1 day of creditable active military service with multiple periods of lost time.

15.  On 18 December 1981, the Army Discharge Review Board determined his discharge was proper and equitable and as such denied his petition for an upgrade. 

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  
	a.  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.

	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 applicant's record of service shows a history of misconduct that included an extensive history of NJP, multiple instances of AWOL, and a history of negative counseling.  He demonstrated little desire to adhere to Army standards and despite receiving considerable counseling and/or a rehabilitative transfer, he did not respond favorably.  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 and failure to respond to counseling by members of his chain of command diminished the quality of his service.  

3.  His record of service was not satisfactory and is insufficiently meritorious to warrant an honorable or a general discharge.  Therefore, he is not entitled to an upgrade of his discharge to either a general or an honorable 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)                                         AR20130007268





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007268



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1