IN THE CASE OF:  

		BOARD DATE:  4 September 2014  	  

		DOCKET NUMBER:  AR20140001365 


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 a general discharge.

2.  The applicant states his discharge was issued at the convenience of the U.S. Army.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) states the reasoning in item 28 (Narrative Reason for Separation) as "Misconduct-frequent incidents of a discreditable nature with civil or military authorities."  There were no incidents with civil authorities during his enlistment.  He had only one company grade Article 15 (29 May 1981) and one field grade Article 15 (10 June 1981), which has unfairly prejudiced him throughout his life since his separation.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 17 October 1980.  He served in military occupational specialty 19E (armor crewman).  He was advanced to pay grade E-2 on 17 April 1981.

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 11 March 1981 –for  failing to be at the time prescribed at his appointed place of duty on 5 March 1981 and absenting himself from his unit from 7 to 8 March 1981; his punishment included in part suspended extra duty and restriction
* 17 April 1981 – for wrongfully possessing some quantity of marijuana on 5 April 1981

4.  On 4 May 1981, the suspension of his punishment of a forfeiture of pay imposed on 11 March 1981 was vacated.

5.  On 13 May 1981, a bar to his reenlistment was initiated based on his record of NJPs.  The bar was approved on 18 May 1981.

6.  On 19 May 1981, the suspension of his punishment of a forfeiture of pay and 14 days of extra duty and restriction imposed on 13May 1981 was vacated.  The original Article 15 is not available.

7.  On 29 May 1981, he again accepted NJP under Article 15, UCMJ, for breaking restriction on 17 May 1981.

8.  A DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 3 June 1981, shows he was notified of his pending elimination under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, for misconduct.

9.  On 10 June 1981, he further accepted NJP under Article 15, UCMJ, for breaking restriction on 24 May 1981, willfully disobeying lawful orders from his superior noncommissioned officer on 24, 27, 29, 30, and 31 May 1981, and failing to go at the time prescribed to his appointed place of duty on 31 May 1981.

10.  His record is void of the complete facts and circumstances pertaining to his discharge; however, his record contains the following:
   a.  Orders Number 126-40, issued by Headquarters, U.S. Army Armor Center Fort Knox, KY, on 1 July 1981, reassigning him for discharge on 6 July 1981 under the provisions of Army Regulation 635-200.

   b.  A DD Form 214 showing he was discharged in pay grade E-1 on 6 July 1981, under the provisions of Army Regulation 635-200, paragraph 14-33b(2), for frequent involvement in incidents of a discreditable nature with civil or military authorities.  His service was characterized as under other than honorable conditions.  He was credited with completing 8 months and 5 days of net active service and time lost from 28 April through 2 May 1981.

11.  On 20 June 1983, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued correcting item 27 (Reenlistment (RE) Code) of his DD Form 214 to show RE-3, RE-3B, and RE-3C.

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

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-33b - members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for misconduct.  A discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and found not to have merit.  His record is void of the facts and circumstances of his discharge; however, the available evidence shows he accepted four NJPs under Article 15 for several military infractions of discipline and possessing marijuana and had two vacated suspensions of his punishments.  A bar to his reenlistment was approved on 18 May 1981.  On 3 June 1981, he was notified of his pending elimination under the provisions of chapter 14.

2.  Chapter 14 allows for the discharge of an individual for frequent incidents of a discreditable nature with civil or military authorities to mean either civil or military authorities or both.  He provided no evidence or a convincing argument to show the reason for his discharge is erroneous or unjust.  

3.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge. Without evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  The evidence shows his misconduct during his periods of service diminished the quality of his service below that meriting 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)                                         AR20140001365





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ABCMR Record of Proceedings (cont)                                         AR20140001365



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