IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140010021 


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.

2.  The applicant states he was young and uninformed when he agreed and signed the discharge. 

3.  The applicant did 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 was born in March 1963.  He enlisted in the Regular Army at 17 years and 2 months of age on 7 May 1980.  He was trained in and held military occupational specialties 13B (Cannon Crewmember). 
3.  He served in Germany from 3 February 1982 to 2 February 1984.  He was awarded or authorized the:

* Army Good Conduct Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

4.  His records contain an extensive history of accepting nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 13 October 1982, being disrespectful in language toward a noncommissioned officer (NCO) and becoming hostile and destructive in nature
* 13 July 1983, willfully disobeying a lawful order and being disrespectful toward an NCO 
* 26 August 1983, failing to be at his appointed place of duty at the time prescribed and failing to obey a lawful order 
* 5 December 1983, failing to go at the time prescribed to his appointed place of duty on two occasions and willfully disobeying a lawful order on three separate occasions 

5.  He had undergone a mental status evaluation in July 1983.  He was cleared for administrative actions deemed appropriate by his chain of command. 

6.  On 1 August 1983, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his habitual misconduct.  The immediate commander stated the applicant had exhibited a lack of respect toward authority and conducted himself in an unprofessional manner.  He did not exhibit the potential to become an NCO and he should not be allowed to reenlist.  

7.  The applicant was provided a copy of this bar, but he elected not to submit a statement on his own behalf.  The approval authority ultimately approved the bar.

8.  On 15 December 1983, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 (Enlisted Personnel Separations) for misconduct – pattern of misconduct.  The specific reasons were cited as the applicant's conduct described as prejudicial to good order and discipline and included five instances of NJP for being disrespectful and disobeying orders.  

9.  On 15 December 1983, the applicant acknowledged receipt of the commander's intent to separate him.  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 board of officers, waived his right to appear before a board of officers, and elected not to submit statements on his own behalf.  He acknowledged he understood:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* 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

10.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 due to misconduct – pattern of misconduct.  The intermediate and senior commanders recommended approval of the discharge.  

11.  Consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 by reason of misconduct and directed issuance of an under other than honorable conditions discharge.

12.  The applicant was discharged on 3 February 1984.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged by reason of misconduct - pattern of misconduct under the provisions of chapter 14, Army Regulation 635-200, with his service characterized as under other than honorable conditions.  This form further confirms he completed 3 years, 8 months, and 27 days of creditable active military service during this period.

13.  There is no indication he applied to 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	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 evidence of record shows the applicant exhibited a pattern of misconduct ranging from failing to go to his appointed place of duty, being disrespectful, disobeying lawful orders, and exhibiting a behavior that was prejudicial to good order and discipline.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his pattern of misconduct.

2.  Although he was 17 years and 2 months at the time of his enlistment, his misconduct occurred in 1982 and 1983 when he was 19 and 20 years of age and appears to have been habitual.  Nevertheless, there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their service. 

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  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)                                         AR20140010021



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ABCMR Record of Proceedings (cont)                                         AR20140010021



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