IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009807 


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 to a general, under honorable conditions discharge.

2.  The applicant states:

	a.  He believes his discharge was wrong because he did time at the U.S. Army Retraining Brigade (USARB), Fort Riley, KS, in order to receive a general discharge.  He signed his DD Form 214 (Report of Separation from Active Duty) because he had been away from home a long time and he wanted to see his mother.

	b.  All he did was transfer drugs for a friend and he (the friend) tried to put the blame on him like he was a drug dealer.  He was court-martialed and he testified against BF for the German police.  He finished the USARB, Fort Riley, KS, in good faith on his part and was supposed to receive a general discharge but the sergeant got mad at him because he did not want to reenlist.

	c.  His discharge was inequitable because it was based on one incident during his military service.  He was young and immature when the incident occurred.  He did not understand his responsibilities as a member of the military.  His actions were not egregious and his under other than honorable conditions discharge was disproportionate to the charges against him.

3.  The applicant provides his DD Form 214.

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 21 December 1973 at 17 years and 6 months of age and he held military occupational specialty 76Y (Unit Supply Specialist).  On or about April 1974, he was assigned for advanced individual training to the 2nd Battalion, Quartermaster School Brigade, Fort Lee, VA.

3.  On 31 May 1974, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty.

4.  On 20 August 1974, he was assigned to the U.S. Army Materiel Management Agency Europe, Germany.  On 3 November 1975, he was attached to the U.S. Army Military Activity Zweibrucken (USAMAZ), Germany and on 18 May 1976, he was assigned to the USAMAZ, Germany.

5.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 24 September 1976, for two specifications of failing to go at the prescribed time to his appointed place of duty
* 12 November 1976, for three specifications of failing to go at the prescribed time to his appointed place of duty
* 7 February 1977, for two specifications of failing to go at the prescribed time to his appointed place of duty

6.  He was reported as absent without leave (AWOL) from his assigned unit from 2 to 3 May 1977.

7.  On 18 May 1977, he was convicted by a special court-martial of one specification of unlawfully selling lysergic acid diethylamide (LSD).  The sentence imposed was confinement for 4 months and the forfeiture of $249 per month for 4 months.

8.  On 18 May 1977, he was confined at the U.S. Army Confinement Facility, Mannheim, Germany.  On 9 June 1977, he was assigned to the USARB, Fort Riley, KS.

9.  Between 28 June and 18 July 1977, he was counseled on numerous occasions by various members of the USARB for his negative attitude and for repeatedly being unprepared for inspection, refusing to do push-ups, failing to follow instructions, failing to get out of bed, leaving his living area in a sloppy state, failing to repair, being disrespectful, failing to shave, and for disobeying a lawful order.

10.  On 22 July 1977, his immediate commander notified him that discharge action was being initiated against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1) for misconduct - frequent acts of a discreditable nature.  

11.  On 22 July 1977, he acknowledged notification of the proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge under honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life (emphasis added).  He declined to submit a statement in his own behalf.

12.  On 22 July 1977, his immediate commander recommended he be discharged under the provisions of Army Regulation 635-200, paragraph
13-5 for misconduct.  The commander stated his conduct and efficiency were unsatisfactory.  The applicant was sent to the USARB for the purpose of receiving correctional training necessary to return him to duty with improved attitude and motivation.  However, his actions since arrival precluded accomplishment of the objective as evidenced by his behavior, attitude, and ability.  He demonstrated little desire for returning to duty and his failure to react constructively to the rehabilitation program indicate that he should not be retained in the service

13.  His senior commander subsequently recommended approval of the discharge action.

14.  On 28 July 1977, the separation authority approved the request for the applicant's discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 26 August 1977, he was discharged accordingly.  

15.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), with an under other than honorable conditions characterization of service.  He completed 3 years, 4 months, and 25 days of net active service with 101 days of lost time due to being AWOL or in confinement.

16.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1), in effect at the time, provided that individuals would be discharged by reason of misconduct when their records were characterized by frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this paragraph.  

18.  Army Regulation 635-200, 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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on four occasions for failing to go to his place of duty on eight separate occasions and his special court-martial conviction for unlawfully selling LSD.  In addition, after he was assigned to the USARB, he was counseled on numerous occasions for his negative attitude and for repeatedly failing to follow instructions, failing to get out of bed, leaving his living area in a sloppy state, failing to repair, and being disrespectful.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for misconduct - frequent acts of a discreditable nature.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  

3.  The applicant contends that his discharge should be upgraded because he was young and immature at the time of his service.  Records show that he was almost 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  Based on his overall record, his service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20130009807





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ABCMR Record of Proceedings (cont)                                         AR20130009807



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