IN THE CASE OF:  	  

		BOARD DATE:  10 February 2015	  

		DOCKET NUMBER:  AR20140010007 


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 a fully honorable discharge.

2.  The applicant states he was told his discharge would be upgraded 6 months after getting out.  He would have never gotten out early had he known the truth. 

3.  The applicant does not provide any evidence. 

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 records show he enlisted in the Regular Army on 5 July 1978 and - at the time of his discharge - he held military occupational specialties 63B (Power Generator and Wheel Vehicle Mechanic) and 63D (Self-Propelled Field Artillery System Mechanic). 

3.  He served in Germany from 22 March 1980 to on or about 29 June 1981.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, and Noncommissioned Officer Professional Development Ribbon.

4.  The applicant's records show he was frequently counseled by members of his chain of command for various infractions including multiple instances of missing formation and multiple instances of failure to repair.

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on multiple occasions as follows (on/for):

* 28 February 1979, being absent without leave (AWOL) on 22 February 1979
* 29 August 1979, going from his appointed place of duty without authority
* 8 March 1982, being AWOL from 18 to 19 February 1982
* 9 July 1982, going from his appointed place of duty without authority
* 22 September 1982, failing to go at the time prescribed to his appointed place of duty
* 21 October 1982, failing to go at the time prescribed to his appointed place of duty

6.  On or about 27 October 1982, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 by reason of misconduct.

7.  The applicant subsequently acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by a separation board, waived personal appearance before a separation board, and elected to submit a statement on his own behalf.  He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that as a result 

of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.

8.  In his statement, the applicant stated that upon his arrival to Fort Carson, he was doing fine as a Soldier.  He received orders for a special mechanics track school in Maryland along with leave before and after school, enroute to Germany.  He then became a witness in a case and his records were flagged.  The school was very important to him as a mechanic and when the other Soldier's trial was over, he received orders reporting directly to Germany without school.  No attempts were made to help him with his training. 

9.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for a pattern of misconduct.  The immediate commander remarked that the applicant's duty performance had proven beyond any doubt to be prejudicial to the good order and discipline established by the Army.  The applicant had created serious disciplinary problems in the unit and has resisted all efforts of rehabilitation. 

10.  His intermediate and senior commanders recommended approval of the discharge action and a waiver of any further counseling or rehabilitative efforts. 

11.  On 15 November 1982 following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed his reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

12.  He was discharged on 24 November 1982.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - pattern of misconduct with service characterized as under other than honorable conditions.  This form further shows he completed 4 years, 4 months, and 20 days of active service.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

14.  Army Regulation 635-200 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 at the time 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 was normally appropriate for a Soldier discharged for acts or patterns of misconduct.

	a.  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.

	b.  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 record of service reveals a history of misconduct that included multiple instances of failure to repair, missing formation, AWOL, multiple instances of NJP, and a history of negative counseling.  He demonstrated little desire to perform his duties to standards or respond to counseling.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.

3.  The Army has never had a policy wherein the characterization of service is upgraded due to passage of time.  The applicant's record of service was not satisfactory and is insufficiently meritorious to warrant an honorable or a general discharge.  Therefore, he is not entitled to 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)                                         AR20140010007



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ABCMR Record of Proceedings (cont)                                         AR20140010007



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