IN THE CASE OF:	 

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130012656 


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 a general discharge.

2.  The applicant states this conduct was not severe enough for an under other than honorable conditions discharge. 

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

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 4 March 1980 and he held military occupational specialty 55B (Ammunition Specialist).  He was assigned to Fort Hood, TX.  

3.  His records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Marksman Marksmanship Qualification Badge with Grenade Bar. 

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

* 9 May 1980, stealing items from the Post Exchange
* 7 July 1981, disobeying a lawful order

5.  On 31 August 1981, he was convicted by a summary court-martial of one specification of theft (of multiple items, the property of another Soldier) and one specification of unlawfully entering the room of another Soldier with intent to commit larceny.  The court sentenced him to a forfeiture of $334.00 pay, confinement at hard labor for 30 days, and a reduction to the lowest enlisted grade.  The convening authority approved his sentence on the same date. 

6.  He was reassigned to the U.S. Army Retraining Brigade, Fort Riley, KS, for the purpose of receiving correctional training that would return him to duty as a well-trained Soldier.  

7.  On 8 October 1981, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order, wrongfully engaging in physical and verbal altercations with another Soldier (two counts), failing to be at his appointed place of duty, and being disrespectful in language.  

8.  On 20 October 1981, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

9.  On 22 October 1981, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit a statement on his own behalf.  The applicant further indicated he understood that:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life

10.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct- frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant was sent to the retraining brigade to receive correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and ability.  However, his actions precluded accomplishment of this objective as evidenced by his resume of behavior and attitude.  He had demonstrated little desire to return to duty.  He received considerable counseling since his arrival but his actions precluded rehabilitation and he did not respond favorably. 

11.  His intermediate commander reviewed the recommended separation action and recommended approval.  He further requested a waiver of rehabilitation efforts. 

12.  On 3 November 1981, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was accordingly discharged on 9 November 1981. 

13.  His DD Form 214 shows he was discharged on 9 November 1981 as a private/E-1 under the provisions of paragraph 14-33b(1) of Army Regulation  635-200, for misconduct – frequent incidents of a discreditable nature with military authorities, with an under other than honorable conditions characterization of service.  This form further shows he completed 1 year, 
7 months, and 12 days of creditable active service, with time lost from 31 August 1981 to 23 September 1981.  

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  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 applicant contends his under other than honorable conditions discharge should be upgraded.

2.  His record of service shows a history of misconduct that included three instances of NJP, one court-martial conviction, confinement, a history of negative counseling, and a failed rehabilitative/retraining transfer.  He appears to have demonstrated little desire to return to duty and despite receiving considerable counseling, he did not respond favorably.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is no 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)                                         AR20130012656





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ABCMR Record of Proceedings (cont)                                         AR20130012656



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