IN THE CASE OF:  

		BOARD DATE:  18 September 2014  

		DOCKET NUMBER:  AR20140002995 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he needs his discharge upgraded so he can obtain medical services.

3.  The applicant provides a copy of his 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 enlisted in the Regular Army on 28 March 1978.  He held military occupational specialty 16D (Hawk Missile Crewmember).  
3.  He served in Germany and the highest rank he attained while on active duty was private first class/E-3.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), in:

* April 1978, for the wrongful possession of marijuana
* January 1979, for the wrongful possession of marijuana
* April 1980, for being disrespectful in language towards his superior noncommissioned officer
* April 1981, for the wrongful possession of marijuana
* December 1981, for failing to obey a lawful order
* July 1982, for failing to obey a lawful order

5.  On 1 September 1982, his immediate commander notified him of his intent to initiate separation action against him for misconduct by frequent incidents of a discreditable nature with civil or military authorities.  The commander indicated the applicant had been counseled on five occasions and he had received a rehabilitative transfer.  He had received several NJPs and had performed far below the standards.

6.  On 2 September 1982, he acknowledged receipt of the separation notification action, consulted with counsel, and he did not submit a statement on his own behalf.

7.  A DA Form 3822-R (Report of Mental Status Evaluation) shows he was cleared for any administrative actions deemed appropriate by his commander.

8.  His immediate commander initiated separation action against him in accordance with Army Regulation 635-200, chapter 14, paragraph 14-12b, by reason of patterns of misconduct.  

9.  His battalion and brigade commanders recommended approval of his discharge. 

10.  On 29 November 1982, the separation authority approved his discharge and directed he receive an under other than honorable conditions discharge.  

11.  On 20 December 1982, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct with his service characterized as under conditions other than honorable.  He completed a total of 4 years, 8 months, and 23 days of creditable active duty service.
12.  There is no available evidence showing 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 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 evidence of record shows he was discharged for a pattern of misconduct. His commander reported he committed several violations of the UCMJ and separation action was initiated against him.  

2.  His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable based on the facts of the case.

3.  In view of the foregoing, there is no basis for granting the requested relief.

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  Granting of veterans' benefits is not within the purview of the ABCMR.





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)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20140002995



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