IN THE CASE OF:	  

		BOARD DATE:	    6 February 2014

		DOCKET NUMBER:  AR20130010029


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 reconsideration of his request for an upgrade of his under honorable conditions (general) discharge.

2.  The applicant states:

   a. Paragraph 8 of the Record of Proceedings, in Army Board for Correction of Military Records (ABCMR) Docket Number AR20100011590, states "a Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or action under the Uniform Code of Military Justice (UCMJ), Article 15."  It further states "it is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

   b. His service in the Army was honorable, with the exception of the singular incident which resulted in his nonjudicial punishment (NJP) under Article 15 of the UCMJ.

   c. The evidence he submitted, including the letters of appreciation, photographs, and newspaper articles, attests to his professionalism and honorable performance of duty.  The evidence he submitted further shows his qualifications and record of advancement.

   d. His general discharge is unjust and it should be upgraded to an honorable discharge.  His single error in judgment should not be considered the governing factor in the determination of his character of service.  His single error should not have resulted in a general discharge as there was no pattern of unacceptable behavior.  To the contrary, his record shows he was progressively promoted and his service was honorable.

3.  The applicant provides:

* a letter from the Army Review Boards Agency (ARBA), dated 10 January 2011, which administratively closed ABCMR Docket Number AR20100028229 
* a previously-submitted DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code (USC), Section 1552), dated 15 November 2010, identified as ABCMR Docket Number AR20100028229
* a self-authored statement, dated 15 November 2010, wherein he requests, in effect, reconsideration of the Board's decision in ABCMR Docket Number AR20100011590
* a letter of appreciation he received from the Commander, Battery B, 1st Cannon Training Battalion, U.S. Army Field Artillery Training Center, Fort Sill, OK, on 7 January 1981
* a letter of appreciation he received from the Commander, Service Battery, 1st Battalion, 13th Field Artillery Regiment, Fort Stewart, GA, on 11 June 1981
* an 8"x10" color photograph of members of his battery, taken during his attendance at one station unit training (OSUT), at Fort Sill, OK
two color photographs – one depicting Soldiers of the 1st Battalion,
13th Field Artillery Regiment firing an artillery piece and the other depicting Soldiers marching in formation
* an 8"x10" color photograph of a Soldier, presumed to be the applicant, holding an artillery round while standing next to an artillery piece
* a copy of an, undated, newspaper article titled, "DIVARTY [Division Artillery] gets set for Savannah blast"  
* DA Form 348 (Equipment Operator's Qualification Record)
* an extract of his DA Form 2-1 (Personnel Qualification Record – Part II)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100011590, dated 23 September 2010.

2.  The applicant provides letters of appreciation, color photographs, newspaper articles, and miscellaneous Department of the Army and Department of Defense forms, which constitute new evidence not previously considered by the Board.  Therefore, this new evidence warrants consideration.

3.  The applicant enlisted in the Regular Army on 30 May 1980.  He completed his initial entry training and was awarded military occupational specialty 13B (Cannon Crewman).  

4.  On 10 December 1980, upon the completion of his initial entry training, he was assigned to Headquarters and Headquarters Battery, 24th Divarty, Fort Stewart, GA.

5.  On 17 December 1980, he was reassigned to Service Battery, 1st Battalion, 13th Field Artillery Regiment, Fort Stewart, GA.

6.  On 13 August 1981, he accepted NJP, under the provisions of Article 15 of the UCMJ, for wrongfully possessing a certain amount of marijuana, on or about 5 August 1981.  

7.  On 26 August 1981, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 
5-31 (Expeditious Discharge Program (EDP)).  As the reason for his proposed action, his immediate commander cited his failure to satisfactorily adapt to military life.  His immediate commander further noted that his lack of desire to fulfill his obligation to the military service made him an ever increasing burden to the unit and the Army.   

8.  On 27 August 1981, he acknowledged notification of his proposed separation from the Army.  He indicated his voluntary consent to the separation action and declined to submit statements in his own behalf.  He acknowledged he understood if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life.  Lastly, he acknowledged he had the opportunity to consult with an officer of the Judge Advocate General's Corps; however, it is unclear if he elected to do so.

9.  On 31 August 1981, the separation authority approved his release from active duty under the provisions of Army Regulation 635-200, paragraph
5-31h(1), with subsequent transfer to the Individual Ready Reserve (IRR), and directed he receive an under honorable conditions (general) characterization of service.

10.  On 9 September 1981, he was released from active duty under honorable conditions, under the provisions of Army Regulation 635-200, paragraph
5-31h(1).  His DD Form 214 shows he completed 1 year, 3 months, and 10 days of net active service.  His DD Form 214 further shows:

* Item 23 (Type of Separation) he was released from active duty
* Item 24 (Character of Service) he was issued an under honorable conditions (general) characterization of service
* Item 25 (Separation Authority) he was released from active duty under the provisions of Army Regulation 635-200, paragraph 5-31h(1)
* Item 28 (Narrative Reason for Separation) he was released from active duty for failure to maintain acceptable standards for retention

11.  His record is void of documentation that further explains the circumstances surrounding, or the processes involved with, his separation from active duty.

12.  He provides letters of appreciation, color photographs, newspaper articles, and miscellaneous Department of the Army and Department of Defense forms.  However, the letters of appreciation pre-date his first instance of NJP, and the photographs and newspaper articles are undated, so it is unclear what point in his period of military service they depict. 

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

   a. Paragraph 3-7a provides that an honorable discharge or relief from active duty 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 an under honorable conditions (general) discharge or relief from active duty 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 or honorable relief from active duty.

   c. Chapter 5, of the version in effect at the time, provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment, and who had demonstrated that they could not, or would not, meet acceptable standards required of enlisted personnel, because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential, could be discharged or released from active duty under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged or released from active duty under this program unless he/she voluntarily consented to the proposed separation.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment, with due consideration for the member's age, length of service, grade, and general aptitude.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under honorable conditions (general) characterization of service was carefully considered; however, there is insufficient evidence to support his request.  

2.  The applicant contends his acceptance of NJP was a singular event; an error in judgment that did not represent a pattern.   

3.  He provides letters of appreciation, color photographs, and newspaper articles; however, these items pre-date his first instance of NJP, and the photographs and newspaper articles are undated, so it is unclear what point in his period of military service they depict.  Regardless, their existence does not negate the negative change in duty performance it appears he experienced near the end of his period of active service. 

4.  The evidence of record does not define the circumstances surrounding his discharge or the character of his service.  It does show he accepted NJP on at least one occasion, but it does not show other acts his chain of command may have considered in making their decision to separate him.  Despite this, the lack of such documentation does not mean his commander lacked a valid, underlying reason for releasing him from active duty.  Absent additional information, administrative regularity must be presumed.  

5.  In view of the foregoing, there is an insufficient basis for granting the requested relief.

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 to amend the decision of the ABCMR as set forth in Docket Number AR20100011590, dated 23 September 2010.




      _____________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)                                         AR20090018593



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ABCMR Record of Proceedings (cont)                                         AR20130010029



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