IN THE CASE OF:	   

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140015205 


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 discharge under other than honorable conditions.

2.  The applicant states he was young and rebellious, but he has turned his life around and has become a productive citizen.

3.  The applicant provides 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 was born on 9 September 1961.  He enlisted in the Regular Army on 26 June 1979 for 4 years.  He completed his training and was awarded military occupational specialty 72E (telecommunications center operator).

3.  On 25 January 1980, he was convicted by a special court-martial of wrongful appropriation of items from the Post Exchange.  He was sentenced to restriction for 30 days, extra duty for 30 days, and forfeiture of $200.00 pay per month for 
2 months.  On 4 March 1980, the convening authority approved the sentence. 

4.  On 9 July 1980, he was convicted by a special court-martial of attempted larceny and  larceny (two specifications).  He was sentenced to confinement at hard labor for 3 months and forfeiture of $299.00 pay per month for 3 months.  On 11 September 1980, the convening authority approved the sentence. 

5.  In November 1980, nonjudicial punishment (NJP) was imposed against him for larceny.  

6.  Between 7 August 1980 and 17 November 1980, his résumé shows his attitude, conduct, performance, and discreditable acts included:

* immature-average training potential
* barracks inspection deficiencies
* in-ranks inspection – needs haircut
* numerous failed inspections
* security violations
* failure to follow instructions
* disobeying lawful orders
* shirking
* falling out of physical training runs
* breaking formation
* found contraband
* drawing in class
* smoking in barracks 

7.  On 19 November 1980, the unit commander initiated action to separate the applicant for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

8.  On 25 November 1980, he consulted with counsel and he was advised of his rights.  He requested consideration of his case by a board of officers.  

9.  On 30 March 1981, a board of officers convened.  The board found the applicant's misconduct as evidenced by:

* two special court-martial convictions
* one NJP
* numerous discreditable incidents recorded by his cadre at the Retraining Brigade

10.  The board recommended his elimination from the service for misconduct with the issuance of a discharge under other than honorable conditions.

11.  On 6 April 1981, the separation authority approved the recommendation that the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct and issuance of a discharge under other than honorable conditions.   

12.  On 28 May 1981, he was accordingly discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-33b, due to frequent incidents of a discreditable nature with civil or military authorities.  He completed of 1 year, 9 months, and 12 days of creditable active service with 51 days of lost time.

13.  There is no evidence that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within its 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 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 3-7a 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.  Although the applicant contends he was young and rebellious, age is not a sufficiently mitigating factor.  He was 18 years old when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

2.  His contention that he has turned his life around and has become a productive citizen was noted.  However, good post-service conduct alone is not a basis for changing a service characterization.

3.  Since his record of service included numerous discreditable acts, one NJP, two special court-martial convictions, and 51 days of lost time, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140015205



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ABCMR Record of Proceedings (cont)                                         AR20140015205



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