IN THE CASE OF:	

		BOARD DATE:	  26 March 2014

		DOCKET NUMBER:  AR20130012377 


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 believes the current characterization of service is harsh and unjust punishment for 44 days of being in an absent without leave (AWOL) status.  At the time, he was told if he took the under other than honorable conditions discharge it would be upgraded in 6 months. 

3.  The applicant does not provide any evidence. 

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.  Having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 27 November 1979.  

3.  He served in Germany from on or about 12 December 1979 to 3 July 1981.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the First Class Marksmanship Qualification Badge with Grenade Bar.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 3 April 1980, being disorderly
* 24 October 1980, wrongfully possessing marijuana

5.  On 25 April 1981, he departed his unit in an AWOL status and he returned to military control on 29 April 1981.  He again departed his unit in an AWOL status from 5 to 13 May 1981. 

6.  On 16 July 1981, he was convicted by a special court-martial of two specifications of being AWOL, from 25 to 29 April 1981 and 5 to 13 May 1981, and two specifications of failing to go at the time prescribed to his appointed place of duty.  The court sentenced him to confinement at hard labor for 45 days, a forfeiture of pay, and reduction to the lowest enlisted grade.  The convening authority approved his sentence on 2 August 1981.  

7.  He was reassigned to the U.S. Army Retraining Brigade Fort Riley, KS.   While there, he accepted NJP under the provisions of Article 15 of the UCMJ on/for: 

* 8 September 1981, disobeying a lawful order
* 11 September 1981, failing to go at the time prescribed to his appointed place of duty

8.  Also while at the U.S. Army Retraining Brigade, he was reprimanded on several occasions and received extensive counseling for various infractions, including lack of motivation, security violation, shirking, and inspection deficiencies.

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders 189-6, issued by Headquarters, U.S. Army Retraining Brigade, Fort Riley, KS, ordering his discharge effective 2 October 1981.
	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 2 October 1981, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-33b(1) for Misconduct – Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities, in the rank/grade of private/E-1 with an under other than honorable conditions discharge.  He completed 1 year, 8 months, and 18 days of creditable active service during the period under review and he had lost time from 25 to 28 April 1981, 5 to 12 May 1981, and 16 July to 20 August 1981. 

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

11.  Army Regulation 635-200 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 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.

	b.  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.  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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.
2.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 2 October 1981 under the provisions of paragraph 14-33b of Army Regulation 635-200 for misconduct with an under other than honorable conditions discharge.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  

4.  The available evidence shows a military career marred with misconduct that included four instances of NJP, two instances of AWOL, a court-martial conviction, a failed rehabilitative transfer, and an extensive history of negative counseling.  As a result, his record of service was not satisfactory and insufficiently meritorious to warrant upgrading his discharge to general or an honorable.  Therefore, he is not entitled to 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)                                         AR20130012377



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ABCMR Record of Proceedings (cont)                                         AR20130012377



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