IN THE CASE OF:	   

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140002826 


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 discharge to an honorable discharge.

2.  The applicant states he served time for an entrapment case; however, he has not been in trouble with the law since.  He has lived the past 34 years as an upstanding citizen. 

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and National Archives (NA) Form 13038 (United States of America Certification of Military Service).

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 (RA) on 31 January 1972.  On 
16 October 1974, he was honorably discharged for the purpose of immediate reenlistment.  On 17 October 1974, he reenlisted in the RA for his present duty assignment in U.S. Army Europe.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 5 December 1974, for operating a motor vehicle without a valid operator's license and leaving an accident without identifying himself
* 13 August 1975, for failing to remain awake while performing duties as Charge of Quarters
* 15 October 1976, for absenting himself from his place of duty on two occasions
* 8 March 1977, for absenting himself from his place of duty and for failing to go at the time prescribed to his appointed place of duty
* 12 July 1977, for leaving his appointed place of duty in an absent without leave status from 24 to 30 June 1977
* 12 August 1977, for operating a passenger vehicle while drunk and for failing to have proper insurance and an inspection sticker
* 16 June 1978, for willfully disobeying a lawful command from a commissioned officer
* 18 August 1978, for failing to go at the time prescribed to his appointed place of duty on two separate occasions

4.  His record contains a DA Form 2-1 (Personnel Qualification Record) authenticated by the applicant on 13 April 1978.  Item 27 (Remarks) shows he was arrested on 16 September 1977 by civil authorities in Columbus, GA while on an authorized pass.  He was charged with possession of dangerous drugs and released on bail on 3 October 1977; he was convicted and sentenced to 
2 years in confinement on 10 November 1978.

5.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was discharged on 17 April 1979 in the rank/grade of private/E-1 under the provisions of section III, chapter 14, Army Regulation 635-200, for misconduct – conviction by civil court, with an under other than honorable conditions characterization of service.  This form further shows he completed 6 years,         8 months, and 21 days of total creditable active service, with 176 days of time lost.  

6.  There is no indication the applicant 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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  

8.  Army Regulation 635-200, 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. 

9.  Army Regulation 635-200, 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 record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 17 April 1979 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct with an under other than honorable conditions discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

3.  The applicant's contentions regarding his post-service conduct were considered.  However, good-post service conduct alone is not a basis for upgrading a discharge.    

4.  The available evidence shows his second enlistment was marred with misconduct that included numerous instances of NJP and conviction by a civil court.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.  Therefore, he is not entitled to 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)                                         AR20140002826



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ABCMR Record of Proceedings (cont)                                         AR20140002826



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