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Decision Text

ARMY | BCMR | CY2014 | 20140011549
Original file (20140011549.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140011549 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* as soon as he arrived at Fort Hood, TX, his first sergeant took an immediate dislike to him and began harassing him
* he was restricted to the post without cause
* he was promoted to private first class and the first sergeant took his rank away
* his leave was not approved and calling the sergeant major for help just made things worse
* he finally gave up and left
* when he got back on station, he was separated with a discharge under other than honorable conditions

3.  The applicant provides no additional 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 enlisted in the Regular Army on 25 October 1978.  He completed training as a field wireman.

3.  On 11 September 1979, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) for one day.

4.  On 12 March 1980, he was convicted by a summary court-martial of being AWOL from 1 February until on or about 16 February 1980 and for breaking restriction.

5.  The applicant accepted NJP on 10 April 1980 for being AWOL for approximately 2 hours.

6.  The facts and circumstances pertaining to the applicant's discharge are not available.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 22 May 1980, he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-33b(1), for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 5 months, and 24 days of net active service this period.  His DD Form 214 further shows he had time lost during four periods. 

7.  A review of the applicant's records fails to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is 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.

	b.  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.

	c.  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 records show he accepted NJP twice and he was convicted by a summary court-martial.  Although he may now believe that the type of discharge he received was too harsh, in his commander's judgment it reflected his overall record of service.

2.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though the applicant's records do not contain his discharge packet, it is presumed that his discharge processing was accomplished in accordance with applicable regulations.

3.  The applicant has not shown error or injustice in the action taken by the Army in his case.

4.  In view of the foregoing, there is no basis for granting his request for 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.

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ABCMR Record of Proceedings (cont)                                         AR20140011549



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