BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140004968 


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 honorable.

2.  He states:

* he was racially and religiously discriminated against by a noncommissioned officer (NCO)
* he was run over by a Dominos Pizza truck while assisting a fallen Soldier
* he was called insane for 13 to 14 months
* he had no street smarts and was an innocent babe in the jungle
* he asked for a transfer to get away from his abuser, the NCO 

3.  He provides a Self-Help Guide for Discharge Upgrading and five supporting statements.

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.  After having prior service in the Army National Guard, on 6 October 1983, the applicant enlisted in the Regular Army.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 1 March 1984 for wrongfully, willfully, and unlawfully impersonating an agent of superior authority on 30 November 1983
* 24 May 1984, vacation of suspended forfeiture of $139.00 per month for 
1 month and reduction to E-1 imposed on 1 March 1984 for being absent from his place of duty from 26 to 27 April 1984
* 15 August 1984 for failing to go to his appointed place of duty on 31 July and 2 August 1984
* 18 October 1984 for being incapacitated for the proper performance of his duties on 21 September 1984

4.  The applicant's record also shows from 9 July through 6 September 1984, he received 8 counseling statements for various infractions such as missing physical fitness training, company and/or platoon formations, and rendering dishonored checks.

5.  On 16 August 1984, he underwent a mental status evaluation and he was psychiatrically cleared for separation.

6.  On 19 September 1984, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – patterns of misconduct.  Specifically, the commander stated the basis for his action was the applicant was an extremely poor Soldier who showed low regard for military authority and was frequently absent from duty.  He repeatedly failed to obey lawful orders and had developed a pattern of writing bad checks.

7.  On 24 September 1984, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to submit a statement in his own behalf.  He acknowledged he understood he could encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him.  He further acknowledged he understood if he received a character of service that was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply his discharge would be upgraded.  

8.  On 13 November 1984, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph14-12b and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 21 November 1984, he was discharged under the provisions of Army Regulation 635-200, chapter 14-12b for misconduct, patterns of misconduct, with a characterization of service listed as under other than honorable conditions.  He completed 1 year, 1 month, and 11 days of creditable active service this period with lost time from 19 to 23 July 1984 and 24 to 25 July 1984.

10.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The applicant provided a Self-Help Guide for Discharge Upgrading that instructs him to retype any of the sample issues provided that apply to his case and add detailed explanations and attach to his application.  Although the applicant checked numerous issues, all are not claimed as reasons for his discharge upgrade in his application to the Board.

12.  The supporting statements submitted by the applicant speak highly of the applicant's dependability and honorability.  One author relays her health issues and expounds on the applicant's assistance with maintaining her home and personal finances after the death of her spouse.  Another author states the applicant is a very caring person who helps a lot of homeless people.  The president of the Gateway Area Business Association (GABA) states that he has served on the GABA board for 10 years and has relied on the applicant to volunteer annually for the outdoor event.  He adds that the applicant has been instrumental in greeting police, fire, and sheriff representatives, and the community appreciates his services.

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, 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 3-7a 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.

	c.  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 argues, in effect, that his discharge should be upgraded because he was subjected to either racial or religious discrimination.  However, there is no evidence of record and he did not provide any to support his claim.  Therefore, his contention is unfounded.

2.  Although the applicant provided numerous supporting statements attesting to his dependability and his outstanding qualities, good post-service conduct alone is not a basis for upgrading his discharge.

3.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

4.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20140004968



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ABCMR Record of Proceedings (cont)                                         AR20140004968



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