IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140001972 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states his discharge was too harsh.  He was convicted of disobeying a direct order to help a fellow Soldier to move an empty trash can from one floor to another.  His witness who was to assist him in fighting the conviction was released early to keep him from testifying on his behalf.  If his fellow Soldier had been there the outcome of his discharge may have been different.  He also contends that he has been an honorable and model citizen for more than 40 years with no felony or misdemeanor convictions.

3.  The applicant provides a copy of 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.  On 28 December 1973, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 71N (Movement Specialist).

3.  The applicant accepted nonjudicial punishment on 8 May 1974, for being absent without leave from 4 to 6 May 1974, and on 1 August 1974, for being disrespectful in language, disobeying a lawful order, and using reproachful words towards a superior noncommissioned officer.

4.  Special Court-Martial Orders Number 2, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA on 11 March 1975, show the applicant was, on 10 February 1975, convicted of a violation of Article 91 of the Uniform Code of Military Justice (UCMJ); specifically, he was convicted of disobeying a lawful order.

5.  The discharge packet is missing from his military records; however, his 
DD Form 214 shows he was administratively discharged on 11 April 1975, under the provisions of Army Regulation 600-200, paragraph 13-5a, for unfitness.  His service was characterized as under conditions other than honorable.  He completed 1 year, 2 months and 16 days of creditable active duty and had 
28 days of lost time.

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

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  At that time, paragraph 13-5 provided for the separation of individuals for unfitness, which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted an Undesirable Discharge Certificate was normally issued.

	a.  Paragraph 3-7a, of the version currently in effect, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
	b.  Paragraph 3-7b, of the version currently in effect, 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.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) - paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because it was too harsh.

2.  In the absence of evidence to the contrary, it is presumed that his discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record of service.

3.  Based on his record of indiscipline which includes more than just his court-martial conviction, his service clearly does not meet the standards of acceptable conduct for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant’s belief that his characterization of service is too harsh is not supported by any documented evidence.  Furthermore, he has not provided a convincing argument or corroborating testimony to support his contention.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140001972





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ABCMR Record of Proceedings (cont)                                         AR20140001972



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