BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130016942 


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, in effect, an upgrade of his undesirable discharge.

2.  He states:

* he requests his status be reviewed
* he was being court-martialed, but it was dismissed
* he finished his term of service, but he was released even though he completed service
* he suffered from Post-Traumatic Stress Disorder (PTSD) and loss of family members

3.  He provides no additional documents.  

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 August 1973 for a period of three years.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on four occasions for the following offenses:

* participating in a breach of the peace by wrongfully engaging in a fist fight with a specialist four
* wrongfully having in his possession one ounce, more or less, of marijuana
* treating with contempt his superior non-commissioned officer 
* failing to go at the time prescribed to his appointed place of duty
* wrongfully having in his possession 0.19 grams, more or less, of marijuana

4.  His disciplinary history also shows he was convicted by special court-martial of having in his possession, with intent to deceive, another's DD Form 345 (Armed Forces Liberty Pass) (two specifications) and an additional charge of being absent without leave (AWOL) from 10 to 20 May 1976.  He was sentenced to a forfeiture of $100.00 pay for two months and a reduction to private, E-1.  On 16 August 1976, the findings were approved.  His service record is void of evidence that indicates the court-martial charges were dismissed.  

5.  His discharge packet is not available for review.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 9 August 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-5a(1), by reason of frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 11 months, and 9 days total active military service with 10 days of lost time.  He was issued an Undesirable Discharge Certificate.

6.  His service record is void of medical documentation which indicates he was diagnosed with any type of mental condition.

7.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

9.  Army Regulation 635-200, paragraph 3-7a, states 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.

10.  Army Regulation 635-200, 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's record is void of the specific facts and circumstances surrounding his discharge.  However, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  His service record shows he received four Article 15s and a conviction by a special court-martial.  Although he contends the court-martial was dismissed, the evidence of record does not support his claim.  

3.  He contends that his misconduct was due to PTSD.  However, his service record is void of evidence indicating he was diagnosed with this mental condition prior to his discharge or that he raised his mental condition as a possible defense at the time.

4.  His contention regarding the loss of his family members is acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  This issue is not sufficiently mitigating to warrant an upgrade of his discharge.





5.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as under other than honorable conditions.

6.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's 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)                                         AR20130016942





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ABCMR Record of Proceedings (cont)                                         AR20130016942



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