IN THE CASE OF:
BOARD DATE: 31December 2013
DOCKET NUMBER: AR20130008077
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 correction of his records to show the character of his service as uncharacterized.
2. The applicant states his discharge was inequitable because it was based on one isolated incident in 11 months of service. He states he had no other adverse action.
3. The applicant provides a copy of 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 enlisted in the Regular Army on 15 March 1983. He completed training as an infantryman.
3. The applicant was counseled on 15 February 1984 for being disrespectful toward noncommissioned officers and officers in gestures and words and for failing to report to sick call as told. The DA Form 4856 (Developmental Counseling Form) shows the applicant:
* had a history of disrespect, attitude problems, poor duty performance, and misutilization of sick call (e.g., sore nose, acne
)
* made some unacceptable comments on a counseling statement
* expressed derogatory opinions about his unit
* disobeyed a lawful order
* was told that his behavior would not be tolerated
* after being told that if he intended to continue wearing a uniform, big changes in his attitude and performance were warranted
* requested to be "chaptered"
4. On 5 March 1984, the applicant was notified that charges were pending against him for the following offenses:
* possessing marijuana
* being drunk and disorderly
* attempting to escape lawful custody
* disobeying a lawful command (two specifications)
* possessing drug paraphernalia
* possessing a knife with a blade over 4 inches in length
* being disrespectful towards a commissioned officer in gesture and in language
5. On 5 March 1984, having been advised by legal counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial. In his request for discharge he acknowledged he understood that:
* if his request for discharge was accepted, he could be discharged under conditions other than honorable conditions and be issued an Under Other Than Honorable Conditions Discharge Certificate
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge
6. In his request for discharge, he elected to submit a statement in his own behalf. He stated that due to his time in the service and since he had not been involved in any other incidents which required disciplinary action, he was requesting that he receive a general discharge. He stated a general discharge would help his future. He stated he wished to fulfill his enlistment, but due to extraordinary circumstances, he was not.
7. On 8 March 1984, the appropriate separation authority approved the request for discharge and directed the issuance of a discharge under other than honorable conditions.
8. On 12 March 1984, the applicant was discharged for the good of the service in lieu of trial by court-martial. His DD Form 214 shows he completed 11 months and 28 days of net active service this period.
9. His records do not show that he ever petitioned the Army Discharge Review Board for a change to his character of service.
10. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
b. Paragraph 3-7b states 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.
c. Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status. This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. The regulation required an uncharacterized description of service for separation under this chapter.
d. Separation under chapter 11 applied to Soldiers who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty and demonstrated that they could not or would not adapt socially or emotionally to military life.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. His supporting evidence has been considered.
2. His contention that he had no other adverse action against him is untrue. His records show he was not only counseled for his numerous offenses, he had charges pending against him as a result of those and other offenses. Based on the nature of the offenses charged, the type of discharge he received appropriately reflects his overall record of service.
3. According to the applicable regulation, separation under chapter 11 applied to Soldiers who were in an entry level status and before the date of the initiation of separation action, had completed no more than 180 days of continuous active duty and demonstrated that they could not or would not adapt socially or emotionally to military life. The applicant had 11 months and 28 days of net active service this period. He was not eligible for an uncharacterized description of service.
4. The applicant has not shown error or injustice in the type of discharge he received. In view of the foregoing, his request should be denied.
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) AR20130008077
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ABCMR Record of Proceedings (cont) AR20130008077
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