IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013974 


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, in effect, that his discharge under other than honorable conditions be upgraded. 

2.  The applicant states, in effect, that he was wrongfully accused of disobeying a lawful order from an acting sergeant and was unjustly discharged under other than honorable conditions. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 8 January 1980 for a period of 4 years.  He completed his basic training and his advanced individual training as a field wireman and was transferred to Germany on 16 November 1980 for his first assignment.

3.  On 25 May 1981, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer (NCO), for being disrespectful in language and deportment towards a superior NCO, and for failure to go to his place of duty.

4.  On 11 May 1982, he departed Germany for assignment to Fort Polk, Louisiana and on 18 May 1982, NJP was imposed against him for disobeying a lawful order from a superior NCO by drinking alcoholic beverages in the Replacement Detachment.

5.  On 21 September 1982, he was convicted pursuant to his plea of being disrespectful in language towards a superior NCO.  He was sentenced to a reduction to the pay grade of E-1 and confinement at hard labor for 30 days.  He was transferred to the U.S. Army Retraining Brigade (USARB) at Fort Riley, Kansas to serve his confinement.  

6.  On 17 November 1982, the applicant’s commander at the USARB notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct.  He cited as the basis for his recommendation the applicant’s failure to respond constructively to the USARB program and that his discreditable acts and conduct were prejudicial to good order and discipline.

7.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  On 20 December 1982, the appropriate authority approved the recommendation for discharge and directed that the applicant be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 
10 December 1982 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He had served 2 years, 
10 months, and 9 days of active service and had 24 days of lost time due to imprisonment.

10.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

12.  Paragraph 3-7a of Army Regulation 635-200 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.  

13.  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 administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization and the narrative reason for discharge were appropriate for the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating when compared to the repeated nature of his offenses.  

4.  The applicant's overall service simply did not rise to the level of a general discharge.   Accordingly, there appears to be no basis to grant 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.



ABCMR Record of Proceedings (cont)                                         AR20140013974





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ABCMR Record of Proceedings (cont)                                         AR20140013974



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