IN THE CASE OF:  	  

		BOARD DATE:  6 March 2015	  

		DOCKET NUMBER:  AR20140012805 


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 general discharge.

2.  He states, in effect, he was a good Soldier until the incident that led to his discharge; he had never been in trouble.  He also maintains that he was not treated fairly and he was subjected to racial slurs.  He states he was only trying to defend himself.  He explains that while he was in the retraining unit at Fort Leavenworth, KS, he requested leave due to his mother's illness, but he was denied.  He states he requested a discharge and was told it would be a hardship discharge.  He adds that his parents passed away and he was 18 years old with minor siblings.

3.  He provides an FR Form 1806 (Training Progress Notes), dated 20 April 1979.

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 12 April 1978 at the age of 
18 years and 4 months.

3.  His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 5 May 1978, for breaking restriction on several occasions at night during the week of 24 to 30 April 1978
* 27 June 1978, for assaulting a private by striking him with his fist for no apparent reason on 23 June 1979
* 15 November 1978, for being disrespectful toward a noncommissioned officer (NCO) on 1 November 1978
* 30 April 1979, for willfully disobeying a lawful order from an NCO
* 7 May 1979, for failing to go at the time prescribed to his appointed place of duty

4.  Special Court-Martial Order Number 9, issued by Headquarters, 1st Brigade, 101st Airborne Division (Air Assault), Fort Campbell, KY, dated 10 April 1979, shows he was found guilty of being absent without leave (AWOL) from 
9 to 12 March 1979.  He was sentenced to confinement at hard labor for 
30 days, a forfeiture of $200.00 pay, and reduction to the rank/grade of private (E-1).  The sentence was adjudged on 21 March 1979.

5.  The complete discharge packet pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, is not contained in his available military records.  However, his records contain a Disposition Form, Subject:  Recommendation for Discharge Under the Provisions of Chapter 14, Army Regulation 635-200 that shows the company commander recommended the applicant be discharged based on frequent incidents of a discreditable nature.  

6.  On 15 May 1979, he was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he received an under other than honorable conditions character of service.  It also shows he completed 11 months and 29 days of net active service during this period.

7.  His record is void of any evidence that shows he applied for a hardship discharge.

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

9.  The applicant provided Training Progress Notes created while he was assigned to the U.S. Army Retraining Brigade that show on 20 April 1979, an initial cadre interview was conducted.  In the interview, the drill sergeant noted the applicant needed an appointment with the social worker because he did not want to return to duty.  He said the applicant had family problems and wanted a hardship discharge.

10.  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, 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 3-7b 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.

	c.  Chapter 6 establishes policy and prescribes procedures for separating members because of dependency or hardship.  The regulation states, in effect, that when members are under charges, in confinement or have been recommended for elimination under the provisions of chapter 14; they will not be separated for dependency or hardship until proper disposition is made of their case.  Separation from the service because of dependency or hardship must be requested in writing by the enlisted person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's complete chapter 14 discharge packet is not in the available records; however, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

2.  The applicant argues, in effect, that his discharge should be upgraded because he was subjected to racial slurs and was trying to defend himself. However, there is no evidence of record and he did not provide any evidence supporting his claim.  Therefore, his contention is unfounded.

3.  The available records show he was 18 years and 4 months of age at the time of his enlistment and 19 years of age at the time of his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention, in effect, that his age and responsibility for his siblings led to his indiscipline is not sufficient as a basis for upgrading his discharge.

4.  The evidence of record does not show that he submitted a request for hardship discharge or that such a request was improperly denied.

5.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general 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.
ABCMR Record of Proceedings (cont)                                         AR20140012805



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ABCMR Record of Proceedings (cont)                                         AR20140012805



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