BOARD DATE:	 4 September 2014 

		DOCKET NUMBER:  AR20140000154 


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 discharge under other than honorable conditions.

2.  The applicant states, in effect:

* He has letters of recommendation
* It is believed that he had signs of mental illness due to alcoholism and signs of depression, but he has since been treated
* He believes his discharge warrants a change
* He has matured
* He has accepted his past mistakes 

3.  The applicant provides:

* Certificates of completion
* Verification letter
* Character reference letter

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 was born on 10 August 1959.  He enlisted in the Regular Army on 9 May 1977 for a period of 3 years.  He completed his training and was awarded military occupational specialty 71L (administrative specialist).

3.  In February 1978, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty.  

4.  In February 1979, NJP was imposed against him for failing to obey a lawful order.

5.  On 4 June 1979, he was convicted by a general court-martial of willfully discharging a firearm (rifle) from a barracks window under circumstances such as to endanger human life.  He was sentenced to be confined at hard labor for 
6 months.  On 9 July 1979, the convening authority approved the sentence. 

6.  A Fort Riley Form (Social Work Inprocessing Form), dated 11 June 1979, shows the entry "None" for psychiatric. 

7.  Between June 1979 and September 1979, his résumé shows his attitude, conduct, performance, and discreditable acts included:

* Failures to repair
* Violating a lawful written order
* Missed formation
* Unable to perform duties due to intoxication
* Under influence and disorderly
* Disobeying a lawful orders
* Disrespect

8.  On 10 September 1979, the unit commander initiated action to separate the applicant for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

9.  On 14 September 1979, the applicant consulted with counsel and he was advised of his rights.  He requested consideration of his case by a board of officers.  

10.  On 12 October 1979, a board of officers convened.  The board recommended the applicant be eliminated from the service for misconduct with the issuance of an under other than honorable conditions discharge.

11.  On 19 October 1979, the separation authority approved the recommendation that the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct and issuance of an under other than honorable conditions discharge.   

12.  On 1 November 1979, the applicant was accordingly discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-33b, due to frequent incidents of a discreditable nature with civil or military authorities.  He completed of 1 year, 10 months, and 15 days of creditable active service with 218 days of lost time.

13.  There is no evidence which shows he was diagnosed with a mental condition prior to his discharge.

14.  He provided a character reference letter from his roommate who attests he is intelligent, capable, dedicated, and personable. 

15.  He also provided several certificates of completion.  One certificate shows he successfully complete the Salvation Army Adult Rehabilitation Program in 2009.

16.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  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, 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 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 contends he had signs of mental illness or depression.  However, there is no evidence of record and he provided no evidence which shows he was diagnosed with a mental condition prior to his discharge. 

2.  Although he contends he has matured, age is not a sufficiently mitigating factor.  He was almost 18 years old when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

3.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  Since his record of service included numerous discreditable acts, two NJP's, and one general court-martial conviction, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  His administrative separation 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 reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, 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)                                         AR20140000154



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ABCMR Record of Proceedings (cont)                                         AR20140000154



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