IN THE CASE OF:  	  

		BOARD DATE:  26 March 2015	  

		DOCKET NUMBER:  AR20140011724 


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 (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states he was initially separated for "shirking" his responsibilities or duties and he admits that he missed duty because he forgot when he was scheduled.  He takes complete responsibility for his actions, but he does feel that his youth and inexperience played into this problem.  In addition, he feels that his actions were judged harshly without an attempt at corrective remedies.  He contends that he has lived with this "dishonorable" discharge for most of his adult life and it is continuing to unjustly follow him.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) for the period ending 24 May 1978.

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.  He enlisted in the Regular Army on 12 January 1977 at the age of 18.

3.  He accepted nonjudicial punishment (NJP) on three occasions for:

* the wrongful possession of one ounce more or less of marijuana and breaking curfew
* two instances of failure to go to his appointed place of duty
* purchasing controlled food items from the Korea Regional Exchange and U.S. Army commissary stores, in excess of the amount authorized, on six occasions and breaking restriction

4.  On 26 April 1978, 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 misconduct.  Specifically, his misconduct included frequent incidents of a discreditable nature and his habitual shirking.  His commander noted the applicant was given the opportunity to work for four different supervisors with no change in his on or off-duty behavior; therefore, his successful rehabilitation was not likely.

5.  On 27 April 1978, having been advised by counsel, he acknowledged notification of the pending separation action against him.  He was advised of the basis for the contemplated action to separate him for misconduct.  He waived:

* consideration of his case by, and personal appearance before, a board of officers
* submitting a statement in his own behalf
* representation by military counsel

6.  In conjunction with counseling, he acknowledged:

* he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws

7.  On 10 May 1978, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), Chapter 14 and directed that he be issued a UOTHC Discharge Certificate.
8.  On 24 May 1978, he was discharged accordingly.  His DD Form 214 shows he received a UOTHC discharge, in accordance with Army Regulation 635-200, paragraph 14-33b(1), by reason of "frequent involvement in incidents of a discreditable nature with civil or military authorities."  He completed 1 year, 4 months, and 13 days of creditable active service. 

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

10.  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 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.  The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.  A discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under this chapter.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (GD) 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 age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the applicant's "youth and inexperience" cannot be used as a reason to change a properly-issued discharge.

2.  The applicant’s record reveals an extensive history of misconduct, as evidenced by NJP for possession of marijuana, failure to go to his appointed place of duty, and repeatedly purchasing in excess of the amount authorized of controlled food items.  It further shows that he failed to respond to disciplinary action and counseling.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant an HD or GD.

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)                                         AR20140011724





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ABCMR Record of Proceedings (cont)                                         AR20140011724



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