IN THE CASE OF:	  

		BOARD DATE:  6 March 2014

		DOCKET NUMBER:  AR20130011289 


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 an honorable discharge.

2.  The applicant states he entered the Army at the young age of 18.  He injured his left knee, had surgery, and was not allowed to go to Germany until he recovered.

   a.  One evening, he was at a club and had too many drinks.  He was approached by undercover policemen and he bought drugs from them, but he didn't use the drugs.  When he left the club he was arrested.  He states that this was entrapment.

   b.  He states he received "Article 15s" for falling asleep while on duty, leaving his unit without permission, and entertaining a guest outside of the dayroom.  He was also accused of stealing a set of night vision goggles while he was on charge of quarters; however, he asserts he did not steal them.  He adds that he received a total of five "Article 15s", but he should have only received three "Article 15s."

   c.  He was informed that he was being considered for administrative separation.  He discussed this with the Inspector General and was advised to take the type of discharge being offered instead of obtaining a lawyer.  As a result, he waived his rights and accepted the discharge.

   d.  He states that his achievements in the military far outweigh the few "Article 15s" he received.  In addition, they were not imposed for serious offenses. 

   e.  He is currently 51 years of age and experiencing many health problems, including a broken jaw and problems with his teeth.  He was told he cannot donate blood because he was stationed in Germany next to the Czechoslovakian border and he could have possibly contracted mad cow disease; however, the only way to ascertain this is by an autopsy.  He adds that his health problems started when he was stationed in Germany.

3.  The applicant provides copies of two certificates and four letters.

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 14 May 1979 for a period of 
3 years.  At the time he was 18 years of age.

3.  The applicant completed training and was awarded military occupational specialty 19D (Cavalry Scout).  He was advanced to private//pay grade E-2 on 
14 October 1979 and assigned overseas to Germany on 9 December 1979.

4.  The applicant accepted nonjudicial punishment (NJP) on five occasions for:

* leaving his appointed place of duty without authority on 7 October 1979
* wrongfully having in his possession 1 gram (more or less) of a habit forming narcotic drug (phencyclidine) on 3 November 1979
* willfully disobeying a lawful order from a noncommissioned officer on
13 June 1980; the suspended punishment was vacated on 30 July 1980
* sleeping on duty at his post on 16 July 1980; the suspended punishment was vacated on an unspecified date

* wrongfully having in his possession some amount of marijuana on 
24 October 1980

5.  The applicant did not appeal any of the NJPs that he received.

6.  In January 1981, the applicant was barred form reenlisting.

7.  The applicant's military personnel records do not contain a copy of his separation packet.

8.  Headquarters, U.S. Army Regional Personnel Center, Grafenwoehr, Orders 225-13, dated 22 September 1981, reassigned the applicant to the U.S. Army Separation Transfer Point, Fort Dix, NJ, for discharge on 30 September 1981 The cited authority was Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct).

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 30 September 1981 in the rank of private 
(E-1) under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct based on frequent incidents of a discreditable nature with civilian or military authorities.  His service was characterized as under conditions other than honorable.  He had completed 2 years, 4 months, and 17 days of net active service this period.  He was authorized the Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

10.  On 9 October 1981, the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge.

   a.  A review of the ADRB record of proceedings shows the commander initiated administrative separation action against the applicant based on frequent incidents of a discreditable nature and that the applicant waived his rights during the separation process.

   b.  On 16 June 1982, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request for upgrade of his discharge was denied.


11.  In support of his application the applicant provides:

   a.  two VII Corps, U.S. Army, Europe, and Seventh Army, Certificates of Achievement , issued to the applicant for outstanding performance of duty during the:
* 2nd Armored Cavalry Regiment, Scout Squad Proficiency Course, from 10 to 12 February 1980
* Kit Carson exercise from 23 to 24 June 1980

   b.  A letter of commendation from Lieutenant Colonel Warner D. S------ III, Commander, 1st Squadron, 2nd Armored Cavalry Regiment, to the applicant for his outstanding performance on Kit Carson, the squadron's scout section Army Training and Evaluation Program, on 23 and 24 June 1980.

	c.  A letter from Mr. Eugene (Popeye) H------, World War II pilot, dated 
9 November 2012, who has known the applicant for "a number of years" and finds him to be an outstanding citizen and veteran.

   d.  A letter from Mr. John A. S----, Sr., Lance Corporal, U.S. Marine Corps (Retired), dated 12 January 2013, who states the applicant is a friend and law-abiding citizen.  He offers the letter in support of the applicant as a fellow veteran and in the applicant's efforts to obtain medical treatment for his health problems.

   e.  A letter from Mr. Vic C------, dated 12 May 2013, who has known the applicant for "a few years" and finds him to be a very good person.  He adds that he is honest and helpful to everyone in his neighborhood and in the community.

12.  Army Regulation 635-200, in effect at the time, 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 serious offense, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was young, he should have only received three "Article 15s" (not five), and he was not properly advised concerning his separation action.

2.  The applicant successfully completed training, was awarded MOS 19D, and he had completed about 5 months of service without a discreditable incident of record.  Thus, his contention that he was immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows the applicant received NJP on five occasions and he did not appeal any of the "Article 15s."  In addition, in two instances, the suspension of the unexecuted punishment was vacated due to his acts of indiscipline during the periods of the suspended punishment.  Thus, his contention that "he should have only received three Article 15s" is not supported by the evidence of record.

4.  The evidence of record shows the applicant waived his rights during the notification of separation process.  Thus, his contention that he was not properly advised concerning his separation action is refuted by the evidence of record.

5.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the type and character of discharge directed is presumed to have been, and still is, appropriate.

6.  The applicant's military personnel records show he received NJP on five occasions and he was barred from reenlisting.  In addition, he was discharged for misconduct based on frequent incidents of a discreditable nature with civilian or military authorities.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  Therefore, in view of the foregoing, there is an insufficient 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)                                         AR20130011289



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ABCMR Record of Proceedings (cont)                                         AR20130011289



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