IN THE CASE OF:	

		BOARD DATE:	    19 August 2014

		DOCKET NUMBER:  AR20130021393 


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 was told his discharge would be changed to honorable after 1 year.  At the time of his discharge, he was told he could have his discharge upgraded.  He hopes for the Board's understanding. 

3.  The applicant provides his DD Form 214 (Report of Separation 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’s records show he enlisted in the Regular Army on 25 August 1976 and he held military occupational specialty 62F (Lifting/Loading Equipment Operator). 

3.  His records also show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.

4.  His records reveal an extensive history of negative counseling by various members of his chain of command for various infractions, including; 

* multiple instances of missing payments on bills
* multiple instances of writing bad checks
* multiple instances of failing to show up to work
* failing to respond to counseling and corrective action

5.  In January 1978, he was reprimanded by his company commander for failing to exercise good judgment and initiative in order to report to work on 23, 24, and 31 January 1978.  He had absented himself from work on those days and his chain of command was unable to reach him. 

6.  His records also reveal an extensive history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on/for

* 25 July 1978, dishonorably failing to pay just debt
* 21 September 1978, his previous suspended punishment was vacated
* 7 March 1979, twice failing to go at the time prescribed to his appointed place of duty
* 25 June 1979, being absent without leave (AWOL) from 18 to 20 June 1979

7.  On 27 June 1979, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) due to misconduct.  Specifically, the commander cited the applicant's failure to pay his rent and writing bad checks. 

8.  On 27 June 1979, the applicant acknowledged receipt of the separation notification, consulted with legal counsel, and he was advised of the basis for the contemplated separation action, of the rights available to him, of the effect of any action taken by him in waiving his rights, and of the type of discharge he could receive and its effect on further enlistment or reenlistment.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He further waived consideration of his case by a board of officer, personal appearance before a board of officers, and elected not to submit a statement.

9.  On 27 June 1979, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  The immediate commander stated the applicant had continually shown his failure to recognize his responsibilities to pay just debts.  He had issued 10 bad checks in the past 2 months and had made no attempts to make repayment.  He had also been AWOL or authority from duty in numerous occasions.  He resisted all attempts at rehabilitation and made no effort to improve.  His pattern of misconduct was substantial enough to effect immediate elimination.  His senior commander recommended approval of the discharge action.

10.  On 16 July 1979, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate and that he be reduced to the lowest enlisted grade, if applicable.  On 18 July 1979, the applicant was accordingly discharged.

11.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable conditions discharge.  He had completed a total of 2 years, 10 months, and 24 days of creditable active military service.

12.  There is no indication he petitioned the Army Discharge Review Board for a review 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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.
	a.  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.

	b.  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 evidence of record shows the applicant displayed a pattern of misconduct and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  His pattern of misconduct was substantial enough to effect immediate elimination.  Accordingly, his immediate commander initiated separation action against him and he was accordingly discharged.

2.  The available evidence shows his duty performance was tarnished by an extensive history of negative counseling, several instances of AWOL, a letter of reprimand, and multiple instances of NJP.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His discharge is commensurate with his overall record of military service.

3.  The Army has never had nor does it now have a policy wherein a characterization of service is upgraded due to passage of time. 

4.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  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.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.  Therefore, he is not entitled to the 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)                                         AR20130021393



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ABCMR Record of Proceedings (cont)                                         AR20130021393



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