IN THE CASE OF:  	  

		BOARD DATE:  9 April 2015	  

		DOCKET NUMBER:  AR20140014596 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was unfairly characterized for defending himself when he was charged with fighting.  He was unaware until recently that he could request an upgrade of his discharge.  He was told by his company that he did not have anything coming to him and he had to accept what was given to him.

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 14 March 1979.
3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 September 1979, for willfully disobeying a superior noncommissioned officer on or about 21 August 1979.

4.  His record contains Special Court-Martial Number 1, issued by Headquarters, 2nd Brigade, 7th Infantry Division, Fort Ord, CA, dated 9 January 1980 that shows the applicant was found guilty of unlawfully striking a Soldier in the area of his upper chest and the hand with a means likely to produce grievous bodily harm, to wit:  an entrenching tool.

5.  The applicant was sentenced to reduction to the grade of E-1, to be confined at hard labor for 60 days and to forfeiture of pay per month for 3 months.  The sentence was adjudged on 19 December 1979.

6.  The applicant accepted  NJP under the provisions of Article 15 of the UCMJ on:

* 4 March 1980, for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order
* 6 March 1980, for disobeying a lawful order and for failing to go at the time prescribed to his appointed place of duty
* 18 March 1980, for unlawfully striking another Soldier and for disobeying a lawful order

7.  The applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations Enlisted Personnel ) for misconduct.

8.  On 25 March 1980, the applicant acknowledged receipt of the commander's intent to separate him for misconduct.  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, a personal appearance before the board, and he elected not to submit a statement in his own behalf.  He also waived representation by military counsel.

9.  The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood 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.  His intermediate commander recommended approval of the discharge action and a waiver of any further rehabilitative efforts.

11.  On 27 March 1980, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  The applicant was discharged on 28 March 1980.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge.  He completed 1 year and 2 days of net active service during this period with time lost for the period 19 December 1979 through 31 January 1980.

13.  There is no indication the applicant petitioned 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.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories at the time included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.

	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 request that his discharge be upgraded was carefully considered and determined to be without merit.

2.  Notwithstanding the applicant's contentions, his records show he was convicted by special court-martial and received NJP under the provisions of Article 15 of the UCMJ on numerous occasions.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to correct his behavior diminished the quality of his service.

4.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or 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)                                         AR20140014596





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ABCMR Record of Proceedings (cont)                                         AR20140014596



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