IN THE CASE OF:
BOARD DATE: 5 March 2014
DOCKET NUMBER: AR20130011659
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 that while serving in the Army he sustained a head injury when he was assaulted. He believes that his youthful poor judgment, combined with the head injury, led to the incidents that resulted in his discharge.
a. He was diagnosed with epilepsy in either the late 1980s or early 1990s and he has had trouble with his behavior and decision-making.
b. He adds that his military and post-service medical records are with the Department of Veterans Affairs and they confirm the injury and treatment he has received.
3. The applicant provides no documentary evidence in support of his application.
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 9 October 1979 for a period of 3 years. At the time he was 18 years of age.
3. Upon completion of training he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist). He was advanced to private first class (E-3) on 1 September 1980.
4. The applicant accepted nonjudicial punishment (NJP) on five occasions for:
* being derelict in the performance of his duties on 16 November 1980
* willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on 28 May 1981
* willfully disobeying a lawful order from a superior NCO on 9 July 1981
* failing to go to his appointed place of duty and being incapacitated for the proper performance of his duties (as a result of indulgence in intoxicating liquor) on 26 September 1981
* failing to obey a lawful order from a superior NCO on 10 October 1981
5. A Report of Results of Trial shows, on 11 August 1981, the applicant was convicted by a special court-martial of assault. He was sentenced to reduction to the grade of private (E-1), forfeiture of $330.00 pay per month for 6 months, and confinement at hard labor for 5 months.
6. On 23 October 1981, the applicant's commander notified him that he was recommending him for separation under the provisions of Army Regulation
635-200 (Enlisted Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), based on frequent incidents of a discreditable nature with civilian or military authorities. The applicant was advised of his rights and the separation procedures involved.
7. The applicant consulted with legal counsel and was advised of the rights available to him.
a. He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.
b. He acknowledged that military legal counsel for consultation was available to assist him; however, he waived representation by counsel.
c. He indicated that he would not submit statements in his own behalf.
d. He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge or under other than honorable conditions discharge was issued to him. He was also advised that, as a result of issuance of a discharge under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.
e. The applicant and his counsel placed their signatures on the document.
8. The applicant underwent a separation physical examination and the examining physician found him qualified for administrative separation.
9. The immediate and intermediate commanders recommended approval of the applicant's separation action.
10. The separation authority approved the recommendation for discharge of the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, with an under other than honorable conditions discharge.
11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 18 November 1981, in the rank of private (E-1), under the provisions of Army Regulation 635-200, paragraph
14-33b(1), for misconduct based on frequent involvement in incidents of a discreditable nature with civilian or military authorities. His service was characterized as under other than honorable conditions.
a. He had completed 2 years and 4 days of net active service this period.
b. He was authorized the Expert Marksmanship Qualification Badge with Hand Grenade Bar and Sharpshooter Marksmanship Qualification Badge with (M-16) Rifle Bar.
c. Item 29 (Dates of Time Lost During this Period) shows 11 August through 15 September 1981.
12. The applicant submitted an application to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge. On 24 March 1989, the ADRB determined the applicant's discharge was proper and equitable. Accordingly, the applicant's request for upgrade of his discharge was denied.
13. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his discharge should be upgraded because he was young, he sustained a head injury while in the Army when he was assaulted, and these factors led to the incidents that resulted in his discharge.
2. The applicant successfully completed training, was awarded MOS 76Y, and he had completed more than 1 year 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. There is no evidence of record that supports the applicant's contention that he was assaulted during the period of service under review. However, the evidence of record does show the applicant was convicted by a special court-martial of committing an assault.
a. The evidence of record shows the applicant underwent a separation physical examination and the examining physician found him qualified for administrative separation.
b. Thus, the applicant's contention that his acts of indiscipline were related to a head injury that he sustained while serving in the Army when he was assaulted is not supported by the evidence of record.
4. The applicant's administrative discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on frequent incidents of a discreditable nature with civilian or military authorities was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason for and type of discharge directed were appropriate and equitable.
5. The applicant's military personnel records show he received NJP on five occasions and he was convicted by a special court-martial of assault. In addition, he was discharged for misconduct based on frequent incidents of a discreditable nature with civilian or military authorities. Moreover, he only completed about 2 years of his 3-year active duty obligation. 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 and he is not entitled to an honorable or an under honorable conditions (general) discharge.
6. Therefore, 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 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) AR20130011659
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