IN THE CASE OF:  

		BOARD DATE:  5 February 2014

		DOCKET NUMBER:  AR20130010087


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 served his country wholeheartedly and honorably – he enlisted, he was not drafted and was not forced to serve
* one incident, which he had no control over, changed his life forever
* he was a young kid, a teenager with his whole life in front of him
* the corporal involved in this one incident was the son of a colonel
* while standing in formation, the corporal spit in his face, poked him in the eye, and challenged him to a fight
* the corporal ordered him out of the formation to fight him, and eventually told him he was refusing a direct order
* he initially refused to be drawn in, but eventually, he fought the corporal and knocked him out
* he was just following orders - for this, he was thrown in jail and sent to a retraining brigade at Fort Riley, KS
* the corporal abused his power and nothing was done about it because he was the son of a colonel
* he was uneducated and could barely read or write
* no one told him he had to serve more than the three years for which he enlisted
* he did not desert his country – he served more than the three years for which he enlisted 
* for these reasons he would like his discharge upgraded, to reflect the fact that he loved his country and he served honorably

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

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.  On 25 June 1976, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty 11B (Infantryman).

3.  He served in the Republic of Korea from on or about 2 November 1976 through on or about 26 October 1977.  

4.  While stationed in the Republic of Korea, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on four separate occasions.

* on 14 March 1977, for using disrespectful language toward a superior noncommissioned officer (NCO), on or about 9 March 1977
* on 23 March 1977, for wrongfully communicating a threat to kill a fellow Soldier, and for violently kicking a commissioned officer, on or about       14 February 1977
* on 8 July 1977, for willfully disobeying a lawful order from a superior NCO, on or about 16 June 1977
* on 12 October 1977, for absenting himself from his appointed place of duty, on or about 16 September 1977, and for assaulting an NCO, on or about 18 September 1977

5.  On or about 27 October 1977, upon his return to the continental United States, he was assigned to Company C, 2nd Battalion, 503rd Infantry Regiment, at Fort Campbell, KY.

6.  On or about 19 May 1978, he was reassigned to Company A, 3rd Battalion, 187th Infantry Regiment, at Fort Campbell, KY.

7.  On 4 October 1978, before a summary court-martial at Fort Campbell, KY, he was convicted of a single specification of the Charge of disrespecting a superior NCO and a single specification of the Charge of assaulting a fellow Soldier, each act occurring on or about 15 August 1978.  He was sentenced to confinement at hard labor for 30 days.

8.  On 4 October 1978, he began his period of confinement.  

9.  On or about 11 October 1978, he was transferred to the 3rd Battalion, U.S. Army Retraining Brigade (USARB), at Fort Riley, KS.

10.  On 27 October 1978, he was released from confinement; however, he remained assigned to the 3rd Battalion, USARB, as a trainee.

 11.  On 30 November 1978, he accepted NJP, under the provisions of Article   15 of the UCMJ, for causing a breach of peace and for conducting himself with disrespect toward a superior NCO, each act on or about 23 November 1978.

12.  On 9 December 1978, he was reported by his unit as absent without leave (AWOL).  

13.  On 8 January 1979, he was dropped from the rolls of the Army.

14.  On 25 August 1982, he was discharged from the Army in absentia.  The    DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct – desertion.  This form further shows he was issued an under other than honorable conditions discharge.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

   a. 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 Soldier'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.

   c. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant contends he served his country honorably; he did not desert the Army.  The evidence of record does not support this contention.

3.  The evidence of record shows the applicant's period of service included numerous instances of misconduct, resulting in NJP and a court-martial conviction, which occurred prior to his court-martial for the act he refers to and prior to his act of desertion.  

4.  His administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would have jeopardized his rights.  Based on his record of indiscipline, including his multiple instances of NJP, summary court-martial conviction, confinement, and eventual AWOL and desertion, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is entitled to neither a general nor 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20130010087



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