IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140006844 


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 an honorable discharge.

2.  The applicant states he believes his discharge was unjust because officers with the same charges were able to get away clean. 

3.  The applicant provides a self-authored statement. 

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.  Having 5 months and 3 days of prior active service, the applicant enlisted in the Regular Army on 30 November 1978.  

3.  His record contains a DA Form 2-1 (Personnel Qualification Record) authenticated by the applicant on 29 June 1987.  Item 21 (Time Lost) shows he was absent without leave (AWOL) from 31 August to 9 September 1979 and       11 March to 27 March 1980.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on            5 March 1987, for failing to obey a lawful order and for failing to go at the time prescribed to his appointed place of duty.

5.  The applicant's record shows from December 1987 through February 1988, he received negative performance counseling pertaining to his duty performance, failing to report to duty, and indebtedness. 

6.  Evidence shows on 4 June 1988, the applicant was disqualified from the Personnel Reliability Program as a result of his alcohol abuse and 17 days of lost time due to being absent without leave.

7.  His records show he accepted NJP under the provisions of Article 15 of the UCMJ on 1 July 1988, for failing to obey a lawful order from his first sergeant.

8.  The applicant's record contains a DA Form 3975 (Military Police Report), dated 28 July 1988, in which the Staff Judge Advocate opined that there was sufficient evidence to title the applicant with assault consummated by a battery/domestic disturbance and adultery.

9.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged on 14 November 1988 in the rank/grade of private/E-1 under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct – commission of a serious offense, with an under other than honorable conditions characterization of service.  This form further shows he completed 9 years, 10 months, and 18 days of net active service this period, with time lost from 31 August to 9 September 1979 and 11 to 27 March 1980.  

10.  The applicant provides a self-authored statement in which he states:

   a.  He has been trying to get his discharge upgraded.  He was charged with adultery because of having a friendship with another service member and he was subsequently reduced from the rank of promotable specialist four to the rank of private.
   b.  He has read that other Soldiers have been charged with the same offense but they are allowed to receive a reprimand and retire.  He simply wants a better life for his family and he acknowledges he made a mistake; however, his offense was not as serious as Brigadier General Sinclair's offense and he feels after         30 years he should be granted an upgrade of his discharge.  

11.  On 2 September 1992, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  

13.  Army Regulation 635-200, 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. 

14.  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 is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted; however, his records reveal a history of misconduct which included instances of NJP and lost time.  

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  However, his records contain his DD Form 214 that shows he was discharged on 14 November 1988 under the provisions of Army Regulation 635-200 for misconduct – commission of a serious offense.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  The reason for discharge and the characterization of service appear both proper and equitable.  

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  After reviewing the applicant's entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, he is not entitled to an upgrade of his 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)                                         AR20140006844





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ABCMR Record of Proceedings (cont)                                         AR20140006844



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