BOARD DATE: 12 November 2014
DOCKET NUMBER: AR20140002485
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 to a general discharge.
2. The applicant states:
* He was advised at the time of his separation if he accepted the type of discharge he received, 6 months later his character of service would be changed to general
* He believes the type of discharge he received is too harsh
* He believes his character of service is erroneous
3. The applicant provides:
* Army Discharge Review Board letter dated 6 December 2013
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) received on 28 October 2013
* Two Clara White Mission letters dated 17 October 2013
* Acquaintance letter dated 16 October 2013
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 15 February 1977, the applicant enlisted in the Regular Army for 4 years. He completed training as an indirect fire infantryman.
3. The applicant accepted nonjudicial punishment (NJP) on four separate occasions between 17 May 1977 and 14 November 1978 for the following offenses:
* Failure to go to his appointed place of duty (two specifications)
* Striking another Soldier in the face with his fist
* Failure to obey a lawful order
4. On 20 December 1977, he was convicted by a special court-martial of committing an assault upon another Soldier by striking him on the head with a wine bottle with a force and means likely to produce grievous bodily harm.
5. The applicant was counseled on six occasions between 22 February 1978 and 8 August 1978 for the following offenses:
* Below standard appearance
* Bad attitude
* Tardiness
* Lack of motivation
* Shirking duties
* Failure to follow orders
* Refusal to replace TA-50 items that were lost in the field
* Surly behavior and belligerence to superiors
* Poor performance standards
* Failure to go to training
6. On 23 August 1978, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct. He acknowledged receipt of the notification on 30 August 1978. After consulting with counsel he elected not to submit a statement in his own behalf.
7. The appropriate authority approved the recommendation for discharge on 17 November 1978 and directed the issuance of a discharge under other than honorable conditions.
8. On 6 December 1978, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, due to misconduct frequent incidents of a discreditable nature with civil or military authorities. He completed 1 year, 9 months, and 22 days of net active service this period. He received an Under Other Than Honorable Conditions Discharge Certificate.
9. A review of the applicant's Official Military Personnel File (OMPF) fails to reveal evidence showing that the applicant was told his character of service would be upgraded to general 6 months after his discharge.
10. Further review of the applicant's OMPF shows that the Army Discharge Review Board (ADRB) considered a request for an upgrade of his discharge on an unknown date. However, a copy of the ADRB's decisional document is not available.
11. The applicant provides a letter from the Director of Veterans and Residential Services and a letter from the Residential Advisor of Clara White Mission. Both individuals state that the applicant is a resident of Clara White Mission and that his behavior has been exemplary. They state he is a hard worker and when assigned a chore he does it with the utmost dignity. He also provides a letter from an acquaintance who states the applicant has been a faithful help to him or her and is making every effort to improve himself.
12. Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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's contentions have been noted. His supporting evidence has been considered.
2. His records show he was counseled on numerous occasions as a result of his misconduct. He accepted NJP on at least four separate occasions and he was convicted by a special court-martial as a result of his numerous offenses. Considering the nature of his offenses, the type of discharge he received properly reflects his overall record of service.
3. The applicant has not shown error or injustice in the action taken by the Army in his case. A review of his OMPF fails to reveal evidence showing that he was told his character of service would be upgraded to general 6 months after his discharge.
4. In view of the foregoing, his 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) AR20140002485
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ABCMR Record of Proceedings (cont) AR20140002485
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