BOARD DATE: 7 October 2014
DOCKET NUMBER: AR20140002666
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 that his under other than honorable conditions discharge be upgraded to general, under honorable conditions.
2. The applicant states:
a. He served honorably from 1976 to 1980.
b. He was a very good serviceman and he loved the job he was trained for until the day of his discharge.
c. He was very young and he was going through mental problems.
d. An officer in his company did not like him and he did not allow him to grow to the next step in the company.
e. He was trying to be the very best he could but he was misled in his job.
f. His goal was to serve 22 years of good service like some of his family members did.
g. He requested a change of post but it never happened. His mental problems were getting bad and it appears they overlooked the problem.
h. He was looking to be the very best for his country.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge 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. The applicant was born on 28 November 1957. He enlisted in the Army National Guard on 10 July 1976. His DA Form 2-1 (Personnel Qualification Record) shows he was involuntarily ordered to active for a period of 20 months and 4 days. He entered active duty on 11 July 1978.
3. He accepted nonjudicial punishment (NJP) on 2 February 1979 for being disrespectful in language towards his superior noncommissioned officer (NCO) and for striking his superior NCO in the face with his fist.
4. His DA Form 2-1 shows he was in an absent without leave (AWOL) status during the periods 3-8 March 1979 and 19-26 March 1979 and in confinement during the period 28 March-30 April 1979.
5. On 1 May 1979, he was found guilty by a special court-martial of the AWOL offenses (3-8 March 1979 and 19-26 March 1979).
6. His DA Form 2-1 further shows he was in an AWOL status during the period
3 November-2 December 1979.
7. On 4 December 1979, he was notified by his unit commander that he was initiating action to discharge him from the Army for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, with a under other than honorable conditions characterization of service. He was also advised of his right to consult with legal counsel and to submit statements in his own behalf.
8. On 5 December 1979, he acknowledged receipt of the proposed separation action. He declined the opportunity to consult with legal counsel and elected not submit a statement in his own behalf. He also acknowledged he understood he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.
9. On 11 December 1979, he underwent a mental status evaluation. The evaluation shows his behavior was found to be normal, he was fully alert and oriented, his thinking process was clear, his thought content was normal, and his memory was good. He was also found mentally responsible, able to distinguish right from wrong and adhere to the right, and to have the mental capacity to understand and participate in board proceedings.
10. The separation authority approved the separation action and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate. On 22 April 1980, he was discharged accordingly. His DD Form 214 shows he accrued 78 days of lost time.
11. There is no evidence in his available military records showing that mental illness was the proximate cause of his repeated acts of misconduct or that he was suffering from a mental illness while on active duty.
12. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.
13. 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 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 3-7b 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 contention that his discharge should be upgraded because he was young and he was suffering from mental problems which were overlooked by his chain of command has been carefully considered.
2. There is no evidence in his available military records, and he provided none, substantiating his contention that mental illness was the proximate cause of his repeated acts of misconduct.
3. The available evidence confirms his separation was accomplished in accordance with applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reasons thereof were appropriate considering all the facts of the case.
4. His record of indiscipline includes NJP for disrespecting and striking in the face his superior NCO, several instances of AWOL, a court-martial conviction, and 78 days of lost time. Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel. His misconduct also rendered his service unsatisfactory. Therefore, he is not entitled to a general, under honorable conditions discharge.
5. He contends that he was young at the time. However, he was over 20 years old at the time of his entry into active duty and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.
6. Based on the foregoing, there is no basis to grant 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.
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