BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130008790 


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 upgrade of his under other than honorable conditions discharge.

2.  He states he was a teenager during most of his military service and he was going through a divorce at the time of his misconduct.  He adds he was rebellious and impulsive and he turned to alcohol as a way to self-medicate himself.  He expounds on several instances of indiscipline and states he understands his behavior was unacceptable for military service.  However, he opines that in view of his age and the situation, those incidents were relatively minor.  He concludes he has paid a price for those infractions and maintains he is a different person now.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Special Court-Martial Order Number 3, issued by Headquarters, 5th Engineer Battalion, Fort Leonard Wood, MO, dated 28 November 1979
* Special Court-Martial Order Number 13, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 23 January 1981
* DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record))
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), initiated on 28 March 1978
* 
a statement of support from Dr. BDG, Medical Doctor, dated 21 April 2013

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 27 May 1977 at the age of 
17 years and 4 months.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, UCMJ, on 29 March 1978, for being disrespectful in language toward a superior noncommissioned officer (NCO) on 
10 March 1978.

4.  Special Court-Martial Order Number 3, dated 28 November 1979, shows that pursuant to his pleas, he was found guilty of the below listed charges.  He was sentenced to confinement at hard labor for 64 days, a forfeiture of $155.00 pay per month for 2 months, and reduction to the rank/grade of private (PV1)/E-1.  The sentence was adjudged on 8 November 1979.

* Failing to go at the time prescribed to his appointed place of duty on
10 September 1979
* Failing to go at the time prescribed to his appointed place of duty on 
11 September 1979
* Failing to go at the time prescribed to his appointed place of duty on 
24 September 1979
* Willfully disobeying a lawful order from a superior NCO on 25 September 1979
* Willfully disobeying a lawful order from a superior commissioned officer on
25 October 1979

5.  Special Court-Martial Order Number 13, dated 23 January 1981 shows that pursuant to his pleas, he was found guilty of the below listed charges.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $320.00 pay per month for 6 months, and reduction to the PV1/E-1.  The sentence was adjudged on 6 January 1981.

* Assaulting a superior NCO on 4 November 1980
* Wrongfully communicating a threat to injure a superior NCO on 
4 November 1980
* Failing to go at the time prescribed to his appointed place of duty on 
15 October 1980
* Failing to go at the time prescribed to his appointed place of duty on 
14 October 1980
* Failing to go at the time prescribed to his appointed place of duty on 
11 October 1980
* Failing to go at the time prescribed to his appointed place of duty on 
27 September 1980

6.  On 27 March 1981, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33, for misconduct – frequent incidents of a discreditable nature with civil or military authorities.  Specifically, the commander stated the basis for his action was the applicant's continuous willful acts in violation of the UCMJ.

7.  The applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to submit a statement in his own behalf.  He acknowledged he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood if he received a character of service that was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply his discharge would be upgraded.  He also understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

8.  On 26 May 1981, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph
14-33b(1) and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  He was discharged on 1 June 1981 under the provisions of Army Regulation 635-200, chapter 14-33b(1) for misconduct, frequent incidents of a discreditable nature with civil or military authorities.  He completed 3 years, 10 months, and
12 days of creditable active service with lost time from 8 November 1979 to
30 December 1979.

10.  On 8 June 1981, he appealed to the ADRB for an upgrade of his discharge.  On 21 December 1983, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

11.  The supporting statement submitted by the applicant speaks highly of the applicant's commitment to his family and his subsequent entry into the Army.  The author states the applicant entered the military with the intent of serving his country and receiving training that he could later use in a civilian career.   However, the applicant's immaturity led to his indiscipline which ultimately led to his discharge.  He expounds on the applicant's low-self esteem, substance abuse, and ongoing physical and psychological problems and explains that the applicant is homeless and can benefit from assistance from the Department of Veterans Affairs or other government agencies.

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

	a.  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.  

	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 available records show the applicant was over 17 years old at the time of enlistment and 21 years old at the time of discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, age is not sufficient as a basis for upgrading his discharge.

2.  Further, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans or other benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

3.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

4.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  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)                                         AR20130008790



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ABCMR Record of Proceedings (cont)                                         AR20130008790



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