IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020281 


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 under other than honorable conditions discharge. 

2.  The applicant states he was promised a general discharge and he would have never agreed to any other type of discharge.  He is trying to better himself through school and would support the U.S. [Army] again if possible.

3.  The applicant provides no additional 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.  The applicant enlisted in the Regular Army on 23 January 1980.  On 3 May 1980, he was assigned to the 2nd Battalion, 81st Field Artillery, Germany.
3.  Between May 1980 and April 1981, he was frequently counseled by various members of his chain of command for failing to pay his debts, failing to report to his place of duty at the required time on numerous occasions, failing to follow instructions, dropping out of physical training (PT) runs, failing to obey lawful orders on numerous occasions, and repeatedly failing to maintain military personal standards.

4.  On 22 April 1981, a Bar to Reenlistment Certificate was placed against him.  His immediate commander stated the action was initiated because of the numerous adverse counselings he received and because he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 3 December 1980, for failing to report to his appointed place of duty
* 30 January 1981, for failing to report to his appointed place of duty
* 19 March 198, for failing to report to his appointed place of duty
* 10 April 1981, for two specifications of failing to report to his appointed place of duty

These Article 15s are not available for review with this case.

5.  He was reported as absent without leave (AWOL) from his assigned unit from 3 to 5 June 1981.

6.  He further accepted NJP under Article 15, UCMJ, on:

* 20 July 1981, for failing to obey a lawful order and two specifications of failing to report to his appointed place of duty
* 14 August 1981, for wrongfully appearing in an improper uniform

7.  On 19 August 1981, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b, for misconduct - frequent incidents of a discreditable nature with military authorities. 

8.  On 19 August 1981, the applicant acknowledged receipt of the commander's intent to initiate separation action against him.  On 21 August 1981, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment, the possible effects of this discharge, and the procedures and rights available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws (emphasis added).  He waived consideration of his separation action by a board of officers and declined to submit a statement in his own behalf.

9.  On 8 and 22 September 1981, respectively, his intermediate and senior commander recommended approval of the discharge action.

10.  On 25 November 1981, the separation authority approved his discharge for misconduct - frequent involvement in incidents of a discreditable nature and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 15 December 1981, he was discharged accordingly.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service.

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

14.  Army Regulation 635-200, 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.

15.  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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous adverse counselings he received, the bar to reenlistment placed against him, and the NJP he received on six separate occasions for repeatedly failing to report and failing to obey a lawful order.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130020281





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ABCMR Record of Proceedings (cont)                                         AR20130020281



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