IN THE CASE OF:	   

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140001007 


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 injured in Europe and has had problems since returning to the United States.

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 6 July 1978.

3.  His record contains Special Court-Martial Order Number 2, issued by Headquarters, 1st Armored Division Artillery, dated 28 January 1980, that shows he was found guilty of assaulting a Soldier by striking him with his fist.  The court sentenced him to extra duty and restriction to the limits of the Kaserne for a period of 30 days and a forfeiture of $150.00 pay for 2 months.  The sentence was adjudged on 7 December 1979, and the convening authority approved his sentence on 28 January 1980.  

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 21 October 1980, for disrespecting a commissioned officer
* 9 January 1981, for absenting himself from his unit from 22 to       
24 December 1980
* 23 January 1981, for failing to go at the time prescribed to his appointed place of duty on 19 January 1981
* 23 February 1981, for absenting himself from his unit from 6 to                18 February 1981
* 9 March 1981, for failing to go at the time prescribed to his appointed place of duty on 4 March 1981

5.  On 5 March 1981, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct - frequent incidents of a discreditable nature with civil or military authorities.

6.  On 6 March 1981, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit a statement on his own behalf.  The applicant further indicated he understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him and as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

7.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct- frequent incidents of a discreditable nature with civil or military authorities.  The immediate commander remarked that the applicant was regularly late for formation, absent without leave (AWOL), and he had no respect for authority.  Attempts at rehabilitation had no effect since the applicant had made no attempt to improve his performance.

8.  His intermediate commander reviewed the recommended separation action and recommended approval.  He further requested a waiver of further rehabilitation efforts.

9.  On 20 May 1981, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  

10.  On 21 May 1981, the applicant underwent a physical examination that determined he was fully qualified for separation.  During the examination, the applicant noted on his Standard Form 93 (Report of Medical History) that he was in good health and taking no medication.  The applicant was accordingly discharged on 29 May 1981.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 29 May 1981 as a private/E-1 under the provisions of paragraph 14-33b(1) of Army Regulation 635-200, for misconduct – frequent incidents of a discreditable nature with military authorities, with an under other than honorable conditions characterization of service.  This form further shows he completed 2 years, 10 months, and 6 days of creditable active service, with time lost from 22 to 23 December 1980, 6 to 17 February 1981, and 16 to 
19 April 1981.  

12.  On 19 December 1983, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

13.  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 his under other than honorable conditions discharge should be upgraded.

2.  His record of service shows a history of misconduct that included a court-martial conviction and multiple instances of NJP.  Based on his record of being AWOL, he appears to have demonstrated little desire to remain on active duty.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant underwent a physical examination that determined he was fully qualified for separation.  During the examination, the applicant noted that he was in good health and taking no medication.  While the applicant claims he was injured in Europe and has had problems since returning to the United States, he provides no evidence to support his contention. 

4.  The applicant's 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.  His repeated misconduct and failure to respond to the leadership and support of his chain of command diminished the quality of his service.  

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is no basis for granting the applicant 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)                                         AR20140001007



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ABCMR Record of Proceedings (cont)                                         AR20140001007



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