BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140002083 


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 (UOTHC) discharge.

2.  The applicant states he was young and didn't realize how this would affect his future.  If he had it to do all over again he would have made the Army a career.  He did not feel like he was military material.  

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 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 30 June 1976.  At the time of his enlistment, he was 19 years, 11 months, and 13 days of age.  He served in military occupational specialty 16H (air defense artillery operations intelligence assistant).  He was advanced to pay grade E-3 on 1 April 1977.

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

* 14 July 1977 - wrongfully using marijuana on 1 July 1977
* 9 September 1977 - failing to be at his appointed place of duty at the time prescribed on 4 September 1977
* 1 November 1977 - behaving with disrespect towards a commissioned officer on 16 October 1977 and avoiding duty by feigning an illness and then failing to go on sick call on 21 October 1977
* 9 December 1977 - wrongfully having in his possession some amount of marijuana on 24 October 1977
* 21 February 1978 - failing to go to his appointed place of duty on 17 and 21 February 1978
* 13 March 1978 - failing to go to his appointed place of duty on 2, 3, 4, 5, and 6 March 1978; failing to obey a lawful general regulation on 1 April 1978; and being the driver of a passenger car at the time of an accident and wrongfully and unlawfully leaving the scene of the accident on 7 March 1978

4.  A DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 21 March 1978, shows he was notified of his pending discharge under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), for misconduct.

5.  His record is void of the complete facts and circumstances pertaining to his discharge; however, his records contain a DD Form 214 showing he was discharged in pay grade E-1 on 2 May 1978, under the provisions of Army Regulation 635-200, paragraph 14-33b(2), for misconduct, frequent involvement in incidents of a discreditable nature with civil or military authorities.  His service was characterized as UOTHC.  He was credited with completing 1 year, 10 months, and 3 days of net active service.

6.  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.




7.  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 UOTHC discharge was normally considered appropriate.  

   b.  Paragraph 3-7a - a honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  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 record is void of the facts and circumstances of his discharge; however, the available evidence shows he accepted six NJPs under Article 15 for several military infractions of discipline and possessing marijuana.  On 21 March 1978, he was notified of his pending discharge under the provisions of chapter 14.

2.  His contention that he was young was carefully considered.  He was 19 years, 11 months, and 13 days of age at the time of his enlistment.  He was 20 and 21 years of age when his frequent incidents of a discreditable nature with authorities began.  There is no evidence he was any less mature than other Soldiers of the same age or of a younger age who served successfully and completed their term of service.  

3.  He provided no evidence or a convincing argument to show the reason for his discharge is erroneous or unjust.  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.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a fully honorable or a general discharge.

4.  Without evidence to the contrary, his administrative separation appears to have been accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  It is presumed he was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting 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)                                         AR20140002083



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ABCMR Record of Proceedings (cont)                                         AR20140002083



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