IN THE CASE OF:	  

		BOARD DATE:	    4 November 2014

		DOCKET NUMBER:  AR20140005822 


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 (UOTHC) discharge to a general discharge (GD).  

2.  He states he felt that morale was low at his last duty station, which caused him to act out.  He now sees that there is a different way to handle situations.  He apologizes for his past behavior.   

3.  He provides 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.  On 25 October 1977, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 05C (Radio Teletype Operator).  Effective 1 October 1979, he was advanced to specialist four/E-4.  

3.  On 20 May 1980, he reenlisted while serving in Turkey.  The reenlistment documents he signed show he reenlisted for assignment to Fort Stewart, GA.  

4.  Following his overseas tour in Turkey, on 28 August 1980, he was assigned to Headquarters and Headquarters Battery, 24th Infantry Division Artillery, Fort Stewart, GA.  

5.  His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for:

* absenting himself from his appointed place of duty on 11 February, 18 March, and 7 May 1981
* failing to go at the time prescribed to his appointed place of duty on 22 May 1981 and on 8, 10, and 17 February 1982
* absenting himself from his unit from 28 to 29 May 1981 and from 19 to 23 February 1982
* missing the movement of his unit on 18 October 1981
* breaking restriction on 21 and 22 November 1981
* escaping from the lawful custody of the military police on 13 December 1981

6.  On 23 November 1981, the applicant's battery commander notified him that he was recommending he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for an established pattern of shirking.  His commander advised him that a UOTHC Discharge Certificate could be issued to him and advised him of his rights.  

7.  On 24 February 1982, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, of the rights available to him, and of the effect of a waiver of his rights.

8.  After consulting with counsel, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and counsel.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a GD or a UOTHC discharge were to be issued to him.  He further acknowledged that, as the result of issuance of a UOTHC discharge, he could be ineligible for many or all benefits as a veteran under Federal and State laws.  
9.  In a statement, dated 24 February 1982, he requested that consideration be given to his retention in the service and reassignment to another post or, in the alternative, that he receive a discharge certificate reflecting his prior good conduct.  He summarized his service, and he stated that he had specifically reenlisted for assignment to Hunter Army Airfield, GA, but he received orders to Fort Stewart, GA.  Upon arriving at Fort Stewart, he presented a letter from his commander in Turkey indicating he had specifically reenlisted for Hunter Army Airfield rather than Fort Stewart.  He did not hear anything concerning his potential reassignment to Hunter Army Airfield.  He stated he was born and raised in Savannah, GA (where Hunter Army Airfield is located), and had experienced difficulty with his attendance for duty due to being assigned close to home and having difficulty with transportation between Fort Stewart and Savannah.  He stated he felt that reassignment further away from home would help him perform as a Soldier if reassignment to Hunter Army Airfield was not possible.  

10.  On 19 March 1982, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-33b(2), for misconduct – an established pattern of shirking.  The separation authority found that the applicant was obviously resisting all rehabilitation efforts and the rehabilitation would not produce the quality Soldier desired by the Army.  He directed the applicant receive a UOTHC Discharge Certificate.  

11.  On 26 March 1982, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 4 years, 4 months, and 24 days of net active service this period with 8 days of time lost.  

12.  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.  Paragraph 14-33b, in effect at the time, provided for separation of Soldiers for patterns of misconduct including an established pattern of shirking.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	b.  Paragraph 3-7b provides that a GD 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 does not support the applicant's request for an upgrade of his UOTHC discharge.

2.  He was reassigned to Fort Stewart, GA per his reenlistment contract.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.  The record supports the reason and authority for his discharge.  

3.  Due to his frequent misconduct, his service following his reenlistment was unsatisfactory.  Considering all the facts of this case, his UOTHC discharge was appropriate.  The available evidence is an insufficient basis upon which 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.



ABCMR Record of Proceedings (cont)                                         AR20140005822





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ABCMR Record of Proceedings (cont)                                         AR20140005822



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