BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130013118 


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 discharge under other than honorable conditions. 

2.  He states he wishes to receive healthcare benefits and any other benefits possible.  He served 2 years and 2 months of a 4-year term.  He asked his superior officer if he could be discharged to care for his mother after his father died.  They discharged him soon after.  He believes he served very well, and believes his lieutenant colonel, sergeant major, and other supervisors would agree.  

3.  He provides no documentary evidence 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 11 March 1983, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  

3.  On 14 August 1984, Headquarters, 101st Military Intelligence Battalion, Fort Riley, KS, issued Summary Court-Martial Order Number 1.  The order shows the applicant was found guilty of committing assault and indecent assault upon two fellow Soldiers.

4.  He was counseled on:

* 27 December 1984 for having an expired privately-owned vehicle registration
* 21 January 1985 for failing to return to duty in a timely manner after sick call
* 29 January 1985 for missing formation and playing basketball after being told not to do so

5.  On 4 February 1985, his company commander referred him to the Motivation Improvement Course (MIC) for training.  His company commander noted his lack of motivation and poor job performance as reasons for enrolling him in the MIC.  His commander also noted that he had been counseled on several occasions and failed to respond and that after his court-martial conviction he had failed to ensure that his personal behavior did not interfere with his job.

6.  On 11 March 1985, his company commander counseled him on his failure to comply with standards and the potential consequences, including elimination from the service.  His commander stated the applicant:

* was beyond any type of rehabilitation and retaining him in the Army would be detrimental to mission readiness
* had failed the MIC as a result of misconduct
* seemed at times mentally unstable
* was given an “Article 15” for indecent assault and, in the company commander's opinion, was capable of harming others within the company, battalion, and possibly the division
* had an extremely negative attitude
* had been given an Article 15 for failure to report to his appointed place of duty
* had been given several counseling statements for missing formations and disobeying directives from noncommissioned officers
* lacked the desire and motivation necessary for rehabilitation to be effectively accomplished
7.  On 28 March 1985, the applicant's commander notified him he had recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b.  The applicant acknowledged the notification on the same date.

8.  On 8 April 1985, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of those rights.  

9.  After consulting with counsel, he elected not to submit statements in his own behalf and he waived counsel.  He acknowledged he understood that as the 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 both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  

10.  His chain of command recommended approval of the recommendation to discharge him.  On 9 May 1985, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b and directed that he be issued an Under Other than Honorable Conditions Discharge Certificate.

11.  On 17 May 1985, he was discharged in accordance with the separation authority's decision by reason of misconduct – pattern of misconduct.  

12.  His record is void of documentation indicating he informed his chain of command of a hardship related to the death of his father or that he requested discharge due to a hardship.  

13.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 available evidence does not support the applicant's request for an upgrade of his discharge under other than honorable conditions.  

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  There is no evidence showing the applicant requested a discharge based on hardship related to the death of his father or that his chain of command considered discharging him for hardship.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.  The record supports the reason and authority for discharge shown on his DD Form 214.  

5.  He was counseled on several occasions regarding his conduct, he was convicted by a court-martial, and he failed the MIC as a result of misconduct.  His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his 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)                                         AR20130013118





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ABCMR Record of Proceedings (cont)                                         AR20130013118



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