IN THE CASE OF:
BOARD DATE: 9 September 2014
DOCKET NUMBER: AR20140002557
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 (UOTHC) discharge.
2. The applicant states he truly believes he needs a second chance.
3. The applicant did not provide any supporting documentation.
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 29 January 1980. He held military occupational specialty 11B (Infantryman).
3. He was assigned to Fort Ord, California.
4. On 29 October 1980, his immediate commander recommended his separation for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) paragraph 14-33b(1) due to frequent incidents of a discreditable nature with civil or military authorities. The commander stated the applicant had proven to be disruptive to the good order and discipline of the unit. The applicant had openly admitted that he lacked the desire for continued service and would make no further effort to be a Soldier. He had a defeatist attitude. He was a quitter who would rather leave the service than make the effort to be a good Soldier. He had established a pattern of shirking duty and field training by riding sick call and temporary profiles. The commander indicated the applicant had accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions and had been counseled eight times between June and September 1980 relating to disobeying lawful orders and his desire to be discharged.
5. The applicant consulted with counsel and he waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.
6. The battalion and brigade commanders each recommended approval of the applicant's discharge.
7. The separation authority approved the discharge and directed issuance of a UOTHC Discharge Certificate.
8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 December 1980. He completed 10 months and 5 days of net active service during this period with time lost from 7 July to 26 July 1980.
9. On 16 December 1987, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.
10. 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 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 UOTHC 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 members 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 states 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 has submitted neither probative evidence nor a convincing argument in support of his request.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.
3. In view of the foregoing, 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 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) AR20110025102
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140002557
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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