BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140006706 


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 upgrade of his discharge, from an under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states he would not have requested the discharge he received if he had better understood what the discharge meant.  He was an immature and confused young boy trying to be a man.  He didn't know how serious the discharge was and no one explained it to him.  He was wrong for being stubborn but he was nothing but an immature kid trying to follow in his father's footsteps, who was still in the Army at the time.  To get prison time at Fort Riley made him depressed and he felt as though he had failed himself.  He didn't feel that an argument or being insubordinate at the time could cost him a future in the Army.  He regrets his decision to accept the discharge.  He has multiple family members who served in the Army and received honorable discharges.  He has grown from that experience and learned how to be humble instead of hard-headed and it has made him a better person.  He believes his discharge was in error or unjust because he was not advised that he could have used a civilian lawyer and because of his service-connected injury and surgery. 

3.  The applicant provides:

* twelve pages of medical documents from Pittsburgh Bone and Joint Surgeons, P.C.
* South Hills Surgery Center Operative Report
* Allegheny Chesapeake Physical Therapy Plan of Care
* University of Pittsburgh Medical Center McKeesport Final Report
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.  His military records show he enlisted in the Regular Army on 20 January 1976 at the age of 20.  He was awarded military occupational specialty 76V (Storage Supplyman).  The highest rank/grade he held was private/E-2.

3.  On 27 February 1976, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice, for communicating certain obscene language to two different females.

4.  A Standard Form 513 (Clinical Record), dated 11 November 1976, and other medical records show he dislocated his right shoulder while participating in flag football.

5.  A DA Form 3349 (Physical Profile), dated 1 March 1977, shows he was assigned a temporary profile with temporarily restricted duty for 90 days following shoulder joint surgery.

6.  On 18 March 1977, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, issued Special Court-Martial Order Number 40.  This order shows he pled not guilty to all specifications and all charges and was found guilty of the following offenses:

* unlawfully assaulting Command Sergeant Major (CSM) LWC
* being disrespectful in language toward CSM LWC
* being disrespectful in language toward CSM JRM
* resisting being lawfully apprehended by CSM LWC

7.  He was sentenced to be reduced to the grade of private/E-1, to be confined at hard labor for 3 months, and to forfeit $150.00 per month for 3 months.  The sentence was approved.
8.  A Report of Administrative Disciplinary Proceedings, dated 20 April 1977, shows a proceeding found the applicant assaulted another Soldier and wrongfully used provoking words.

9.  On 22 April 1977, his commanding officer recommended he be discharged from the service for misconduct due to frequent acts of a discreditable nature.  A résumé of his attitude, conduct, performance, and discreditable acts was attached.

10.  His records contain multiple correctional progress notes.  On 22 April 1977, the individual conducting the counseling stated it was his opinion that further efforts to rehabilitate the applicant would be a waste of time and money.  The counselor stated the attitude and conduct displayed by the applicant was the opposite of what they were looking for and he was in close confinement for assault.  The counselor recommended his discharge due to misconduct. 

11.  On 29 April 1977, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He acknowledged that as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He waived his rights in conjunction with this action, including his right to representation by military counsel or by civilian counsel at his own expense. 

12.  On 29 April 1977, his chain of command recommended his separation from military service under the provisions of Army Regulation 635-200, chapter 13, for misconduct because of frequent incidents of a discreditable nature.

13.  A Report of Mental Status Evaluation, dated 2 May 1977, shows there were no disqualifying mental defects and he had the mental capacity to understand and participate in board proceedings. 

14.  The appropriate authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13.  He directed the applicant be given a UOTHC Discharge Certificate.

15.  On 18 May 1977, he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), and given a UOTHC discharge with a separation program designator of "JKA" denoting misconduct - frequent involvement of a discreditable nature with authorities.  His DD Form 214 shows he completed a total of 1 year, 1 month, and 16 days of active military service with 73 days of time lost.

16.  On 27 February 1979, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his UOTHC discharge.

17.  On 8 April 1982, the ADRB denied his appeal of its previous decision on his request for an upgrade of his UOTHC discharge.

18.  He submits multiple medical documents from Pittsburgh Bone and Joint Surgeons, P.C., which show he was seen in 2007 for his left elbow, with an impression of medial epicondylitis.  He was seen on multiple occasions for his right shoulder from 2010 to 2012, with an impression of bicipial tendinitis and impingement.  A secondary problem with his feet was noted.

19.  He submits a South Hills Surgery Center Operative Report, which shows the details of surgery on his right shoulder on 2 April 2012 due to a rotator cuff tear, impingement, and acromioclavicular joint degenerative joint disease.

20.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted a UOTHC characterization of service was normally considered appropriate. 

21.  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 has been satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered; however, the evidence of record does not support his request for an upgrade of his discharge.

2.  His age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

3.  His records show he injured his shoulder while in the military.  However, there is no evidence in his records that would indicate an error in his discharge due to a service-connected injury.  At the time, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him and he waived his right to consult with a civilian lawyer at his own expense.

4.  He received NJP for communicating certain obscene language to two different females.  He was convicted by a special court-martial of unlawfully assaulting and resisting being lawfully apprehended by one CSM and being disrespectful in language toward another CSM.  He was also found to have communicated provoking language and assaulting another Soldier.  At the time, a UOTHC discharge was normally considered appropriate for Soldiers separated under chapter 13 of Army Regulation 635-200.

5.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though his records do not contain his commanding officer's notification to him, it is presumed that his discharge process was accomplished in accordance with applicable regulations.

6.  Based on his record of misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  There is no evidence of error in his discharge.  In view of the foregoing, there is no basis for granting him a general discharge or an honorable 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)                                         AR20140006706



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ABCMR Record of Proceedings (cont)                                         AR20140006706



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