BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140002935 


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, that his under other than honorable conditions discharge (UOTHC) be upgraded.

2.  The applicant states he was not granted emergency leave after receiving notice that his father was suffering from a brain hemorrhage.  He was not treated in a professional manner.

3.  The applicant provides no 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 27 December 1984, completed training, and was awarded the military occupational specialty 11B (Infantryman).
3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on –

* 8 August 1985, for disobeying a lawful order
* 21 September 1985, for disobeying a lawful order and possessing with intent to deceive another Soldier's military pass

4.  On 12 November 1985, the applicant's command initiated discharge action under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for a pattern of misconduct.  The specifics cited were his –

* two NJP's
* numerous negative counseling statements
* substandard duty performance
* failure of rehabilitative transfers
* poor and disrespectful attitude 
* negative effect on morale 

5.  After conferring with military counsel, the applicant acknowledged the proposed discharge action and waived his right to counsel, to appear before a Board of Officers, and to submit a statement on his own behalf. 

6.  On 21 January 1986, the applicant received NJP for failure to go to his place of duty, assault on a fellow Soldier, breaking restriction, two specifications of disobeying a lawful order, and disrespectful deportment toward a noncommissioned officer.

7.  The discharge authority approved the discharge recommendation and directed the applicant receive a UOTHC discharge.

8.  The applicant was discharged on 7 March 1986 for misconduct (pattern of misconduct) with a UOTHC.  He had 1 year, 2 months, and 11 days of creditable active service with no reported lost time.  He is not shown to have received any personal awards, decorations, commendations, citations, or recommendations.

9.  The available record contains no evidence of the applicant's father's illness.

10.  On 4 March 1988, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.  He requested a personal appearance before a Traveling Panel; however, he either failed to respond to the scheduling letters or failed to report for the hearing. 
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

   d.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the record does not contain any evidence that would mitigate his pattern of misconduct or that his father's illness had any bearing on his misconduct.

2.  The applicant's substandard duty performance, pattern of disrespect toward his superiors, and his NJP's clearly show the applicant does not meet the standards of acceptable conduct and performance of duty warranting an upgrade.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  No relief is warranted.


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)                                         AR20140002935





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ABCMR Record of Proceedings (cont)                                         AR20140002935



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