IN THE CASE OF:	 

		BOARD DATE:	 24 February 2015  

		DOCKET NUMBER:  AR20140008204 


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 general discharge (GD) to an honorable discharge (HD).

2.  The applicant states consideration was not given to his alcoholic state at the time of his discharge.

3.  The applicant provides:

* Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim)
* Document titled Service Request All Details
* National Personnel Records Center Letter 

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's military record shows that after having prior service, he last enlisted in the Regular Army (RA) on 14 November 1979.  He was trained in and awarded military occupational specialty (MOS) 11E (Armor Crewman), and private/E-2 is the highest grade he held while serving on active duty.

3.  His military record also shows he earned the National Defense Service Medal and Armed Forces Expeditionary Medal during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice six times as indicated on:

* 8 January 1980, for disobeying a lawful order once on 5 January 1980 and twice on 6 January 1980
* 9 May 1980, for failing to go to his appointed place of duty at the time prescribed
* on or about 15 May 1980, for failing to obey lawful orders on 4 and 5 May 1980 and for departing absent without leave from 5 – 6 May 1980
* 27 June 1980, for failing to obey lawful orders given by a commissioned officer on 24 and 25 June 1980
* 8 July 1980, for failing to go to his appointed place of duty at the time prescribed on 5 July 1980
* 10 July 1980, for failing to go to his appointed place of duty at the time prescribed

5.  On 12 March 1980, the applicant was convicted by a summary court-martial of failing to repair on three separate occasions, possession of marijuana, and being disrespectful toward a noncommissioned officer (NCO).  His sentence included confinement at hard labor for 30 days, a forfeiture of $299.00 pay for 1 month, and a reduction to private/E-1.

6.  On 14 May 1980, the unit commander notified the applicant action was being initiated to separate him under the provisions of Chapter 14, Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), based on frequent acts of a discreditable nature.  He prepared a listing of at least thirty-five discreditable acts of attitude, conduct, or performance that included the following:

* disobeying lawful orders
* possession of marijuana
* failure to repair
* possession of contraband
* a negative attitude
* failed barracks inspection
* sleeping in his bunk after first call
* being disrespectful toward an NCO
* sleeping during duty hours
* security violation

7.  On 15 May 1980, the applicant was advised of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of a waiver of those rights.  The applicant completed his election of rights by requesting consideration of his case by and personal appearance before an administrative separation board.  He also requested consulting counsel and elected not to submit a statement on his own behalf.

8.  On 23 July 1980, an administrative separation board convened to determine if the applicant should be discharged from military service prior to his expiration of normal term of service.  After considering all of the evidence before it, the administrative separation board recommended the applicant be separated from the Army for misconduct with issuance of a GD.

9.  On 31 July 1980, the separation authority approved the findings and recommendations of the administrative separation board and directed that the applicant be separated under the provisions of paragraph 14-33b(1), Army Regulation 635-200, by reason of misconduct, with a GD.  On 1 August 1980, the applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant upon his discharge on 1 August 1980 confirms he was separated under the provisions of paragraph 14-33b(1), Army Regulation 635-200, by reason of misconduct.  It also shows that he completed a total of 1 year, 7 months, and 23 days of creditable active military service and that he held the rank of private/E-1 at the time of his discharge.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or general discharge may be awarded; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.
   
   b.  Paragraph 3-7a provides that an HD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record reveals an extensive history of misconduct, as evidenced by six records of NJP, his counseling record, and statements on file which reflects repeated willful disobedience of lawful orders, being disrespectful, insubordination, security violations, and possession of contraband thereby confirming his frequent incidents of a discreditable nature with military authority.  It further shows that he failed to respond to disciplinary action and counseling.

2.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Given his extensive disciplinary history, it is clear his overall record of service did not support the issuance of an HD by the separation authority at the time of his discharge, nor does it support an upgrade now.

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)                                         AR20140008204



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ABCMR Record of Proceedings (cont)                                         AR20140008204



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