BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140014744 


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 forced to sign his discharge papers or be sent back to jail 
* while in jail he was beaten and his food was stolen and he still has nightmares about it
* he agreed with and signed his discharge papers out of fear
* he wishes he could change some of the decisions he made
* he was excited when he enlisted in the military and so was his family
* his decisions were childish and he has no excuses
* he wants the opportunity to be a part of something special
* it took him 33 years to build up the courage to submit this request
* he was a model Soldier during basic and advanced individual training 
* when he arrived at his command his optimistic attitude and energetic spirit were frowned upon and he gained more enemies than brothers
* his first sergeant had it in for him and he began to pick on him for showing him up
* marijuana was found in some of the other Soldiers’ lockers and he was added to the list of Soldiers who were taken down; he begged to be finger- printed but he was not
* he was discharged unfairly with a UOTHC


3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from the Military), a self-authored statement, three letters of support, and his State of Florida barber’s license. 

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.  On 19 July 1979, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 12B (Combat Engineer).  The highest grade he held was private 2/E-2.

3.  His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* failing to go at the time prescribed to his appointed place of duty on 29 July 1980, 15 June 1980, and 8 December 1980
* falling asleep while on guard duty on 20 November 1980
* wrongfully possessing marijuana on 1 April 1981

4.  Special Court-Martial Order Number 2 issued by Headquarters, 326th Engineer Battalion, Fort Campbell, KY, dated 19 February 1981, shows he pled guilty and was found guilty of failing to go to his prescribed place of duty on 25 and 28 December 1980, and 1, 2, 3, and 5 January 1981.  His punishment consisted of confinement at hard labor for 30 days.   

5.  A memorandum, subject:  Discharge of Personnel for Misconduct – Frequent Incidents, issued by 2nd Unit, 1st Battalion, U.S. Army Retraining Brigade,      Fort Riley, KS, dated 8 April 1981 shows his commander recommended he be discharged from the service for misconduct because of frequent incidents of a discreditable nature. He further stated:

     a.  Discharge for unsuitability was not deemed appropriate because his behavior was not due to an inability to satisfactorily perform within the meaning of unsuitability.

     b.  He had a court-martial conviction and 6 punishments under Article 15 of the UCMJ.

    c.  He was sent to the brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation; however, he demonstrated little desire for returning to duty.

     d.  He received counseling by members of the leadership team and members of the professional staff agencies.  He possessed the mental and physical ability necessary to be an effective Soldier, but his record and his failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service.
    
6.  On 9 April 1981, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  

7.  After consulting with counsel, he waived consideration of his case by an administrative separation board and personal appearance before such a board.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he received an other than honorable conditions discharge.  He acknowledged that, as the result of a UOTHC discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  

8.  On 15 April 1981, an authorized official approved his discharge under the provisions of Army Regulation 635-200, chapter 14.  Rehabilitation efforts were waived.  He directed he receive a UOTHC Discharge Certificate.  

9.  On 16 April 1981, he was discharged in accordance with the authorized official's decision.  His DD Form 214 shows he completed 1 years, 8 months, and 5 days of net active service this period with 24 days of time lost.  

10.  In support of his application he provided four letters of recommendation:

	a.  A veteran's service officer for the Department of Veterans Affairs states he has known the applicant since he was a child and treated him as his own natural born son.  The applicant was athletic and received his high school diploma.  It was after the applicant's service in the Army that he noticed a change in the applicant's behavior.  This change lasted for years but now the applicant has changed and is active in his community and family to include completing the requirements for his barber's license.  With this license, the applicant is now a productive member of the community. 

	b.  A certified addiction counselor states he has known the applicant for 7 years and finds him intelligent, caring and a spiritual individual with great sensitivity.  He volunteers to help others in the substance treatment center.

	c.  A speech pathologist states she has known the applicant for five years and he is polite, concerned and demonstrates a genuine concern for other people.  He gives back to the community by volunteering his time and donating money.

	d.  The applicant's mother states her son has made much progress and now works 6 days a week to support himself.  She requests the Board give him favorable consideration on his application and a second chance.  

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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  

	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.  Other than the applicant's statement, there is no evidence showing he was forced to sign his discharge papers.  In the absence of documentary evidence supporting this claim, it cannot be considered as a mitigating factor with regard to the characterization of his service.

2.  The record shows he was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.  The record supports the reason and authority for his discharge.

3.  Due to his frequent misconduct and acts of indiscretion, to include a conviction by a summary court-martial, his service was unsatisfactory.  Considering all the facts of this case, his UOTHC discharge was appropriate.  The available evidence is an insufficient basis upon which to grant the requested relief.

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)                                         AR20140014744



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ABCMR Record of Proceedings (cont)                                         AR20140014744



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