IN THE CASE OF:	  

		BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130020811 


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 an honorable discharge.

2.  The applicant states he received a separation with an under other than honorable conditions characterization of service.  He sustained a head injury in the line of duty.  Prior to this injury, he was considered an excellent Soldier by his command.  He only became a disciplinary problem after this injury.  This injury occurred during a motor vehicle accident while he was a passenger in a 5-ton wrecker.  He was hospitalized for one week in June 1976 at Fort Carson, CO.  He had multiple episodes of memory loss in the months and years following this incident.  During the episode of misconduct, he requested assistance from his chain of command but they gave him nonjudicial punishment (NJP) instead.  He firmly believes that if he had sustained this injury today, he would be diagnosed with traumatic brain injury (TBI) and receive the medical and psychological care he needed. 

3.  The applicant provides: 

* DD Form 214 (Report of Separation From Active Duty)
* Standard Form 93 (Report of Medical History)

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's records show he initially enlisted in the Regular Army 29 October 1975.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 62F (Crane Operator).  

3.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Expert Marksmanship Qualification Badge with Grenade Bar.  He was assigned to Fort Carson, CO.  

4.  His record reveals an extensive history of accepting NJP under the provisions of Article 15 of the UCMJ on/for: 

* 7 October 1976, failing to go at the time prescribed to his appointed place of duty
* 5 April 1977, twice failing to go at the time prescribed to his appointed place of duty
* 27 June 1977, failing to go at the time prescribed to his appointed place of duty
* 9 August 1977, failing to go at the time prescribed to his appointed place of duty
* 22 August 1977, failing to go at the time prescribed to his appointed place of duty
* 9 November 1977, disobeying a lawful order not to wearing an earring while in uniform
* 23 May 1978, failing to go at the time prescribed to his appointed place of duty on 10 separate occasions
* 7 June 1978, vacation of punishment imposed on 23 May 1978 by reason of failing to report to formation

5.  On 20 June 1978, his battalion commander approved a Bar to Reenlistment Certificate that had been imposed against him as a result of his continued misconduct (multiple instances of failure to repair and disobeying orders).

6.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders issued by Headquarters, 4th Infantry Division, Fort Carson, CO, ordering his discharge from the service. 

	b.  A letter, dated 21 August 1978 , addressed from Headquarters, 4th Infantry Division, Fort Carson, CO, notifying him of the reason for his separation as "Misconduct Frequent Incidents of a Discreditable Nature with Civil or Military Authorities." 

	c.  A duly-constituted DD Form 214 that shows he was discharged on 21 August 1978 under the provisions of paragraph 14-33b of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct (Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities) in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.  This form also shows he completed 2 years, 9 months, and 23 days of creditable active service during this period. 

7.  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.

8.  He provides a Standard Form 93, dated 11 July 1978, that shows he underwent a chapter 14 separation physical.   He indicated his health was "excellent" and he was not taking any medications.  The doctor noted he had been involved in a vehicle accident and had been hospitalized in June 1976.

9.  Army Regulation 635-200, in effect at the time, 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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  

	a.  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. 
	b.  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 that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 21 August 1978 under the provisions of paragraph 14-33b of Army Regulation 635-200 for misconduct with an under other than honorable conditions discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his 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.  

3.  The applicant's contention that his misconduct was caused by a vehicle accident is not supported by any evidence.  There is no evidence in his records and he provides none to show his extensive history of misconduct was caused by his accident.  

4.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.  Therefore, he is not entitled to 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)                                         AR20130020811





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ABCMR Record of Proceedings (cont)                                         AR20130020811



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