IN THE CASE OF:	  

		BOARD DATE:	6 May 2014 

		DOCKET NUMBER:  AR20130014452 


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 enlisted at age 16 and he was his mother's only son
* his parents filed a petition to get him out of the Army on a hardship discharge
* he was told that if he volunteered to go to Fort Riley, KS, and complete retraining he would be moved to Fort Polk, LA
* he was a child trying to find his way
* his mother was ill and she needed him at home
* the Army would not let him go
* he has 5 sons and a daughter and he wants them all in the military
* it has been 33 years since his discharge and he is in good health and makes over $100,000 a year

3.  The applicant provides:

* letter from the National Personnel Record Center, dated 26 June 2013
* 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 21 January 1980 at exactly 17 years of age.

3.  Special Court-Martial Order Number 36, issued by Headquarters, 1st Brigade, 2nd Armored Division, Fort Hood, TX, dated 24 December 1980, shows the applicant pled and was found guilty of unlawfully buying stolen property of another Soldier.  He was sentenced to reduction in rank/grade of private/E-2 to private/E-1, forfeiture of $334.00 pay per month for 3 months, and confinement at hard labor for 15 days.  His sentence was adjudged on 21 November 1980.

4.  Item 35 of his DA Form 2-1 (Personnel Qualification Record) shows he was assigned to the 6th Unit, 3rd Battalion, U.S. Army Retraining Brigade, Fort Riley, KS, on 16 December 1980.

5.  His records contain a timeline titled "Conduct, Attitude, Performance, and Discreditable Acts" showing the applicant had multiple instances of disobeying lawful orders and unsatisfactory behavioral ratings while he was in retraining.

6.  Training Progress Notes, dated 2 February 1981, show:

* the applicant was counseled on being recycled to week 1; however, he indicated it would be unfair and he would rather be discharged
* his unit commander non-concurred with the recommendation for recycling to week 1 and stated:

*	the applicant had not taken the training seriously and he willfully committed acts of repetitive misconduct 
*	his conduct and attitude as demonstrated in both his unit and the brigade were not indicative of the type of Soldier for whom retention is appropriate

7.  On 12 February 1981, the applicant's immediate commander initiated discharge actions based on his misconduct because of frequent incidents of a discreditable nature. 

8.  On 19 February 1981, the applicant consulted with counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and of the procedures/rights available to him.  

9.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 23 February 1981, shows the applicant was found to have the mental capacity to understand and participate in discharge proceedings.

10.  On 25 February 1981, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 26 February 1981.

11.  His DD Form 214 confirms he was discharged by reason of misconduct – frequent involvement in incidents of a discreditable nature with civil or military authorities in accordance with paragraph 14-33b(1) of Army Regulation 635-200 with a character of service of under other than honorable conditions.  He completed 1 year and 22 days of creditable active service.

12.  On 1 March 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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 states 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's request for an upgrade of his under other than honorable conditions discharge was carefully considered.

2.  Although he contends he was in retraining so he could be assigned to a post of his preference, evidence shows he preferred to be discharged rather than complete his rehabilitation training.  His misconduct consisted of multiple instances of disobeying orders and unsatisfactory behavioral ratings while in retraining.

3.  His records show he was afforded multiple opportunities to conform to standards.  These records show he was mentally responsible.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  In the absence of evidence showing his separation was inequitable or unjust, there is no basis for characterizing his service as honorable or general under honorable conditions.



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)                                         AR20130014452



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014452



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1