BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017258 


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 to honorable.

2.  The applicant states:

* he was sent to the field to meet with an Army National Guard unit to participate in a field training exercise
* he didn't have all of the proper gear with him when he arrived as he was not advised what to bring
* a major ordered him to return to his unit to get the needed equipment and return to the field site in the morning
* the next morning he returned to the location where he was to be picked up and no one showed up to get him
* at that point he again returned to his unit where he was advised to try again in the morning
* the following morning the military police came to his apartment and arrested him for being absent without leave
* he was subsequently confined in a correctional facility for 30 days and then discharged from the Army
* he was wronged by his commander because he followed the orders given to him which resulted in his arrest by the military police and his eventual discharge



3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* State of Alabama Nondriver Identification Card
* Probate Court of Etowah County, AL, Petition for Change of Name

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 22 October 1979.  He completed training and was awarded military occupational specialty 13F (Fire Support Specialist).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the following offenses:

* 14 January 1981 – for missing movement due to neglect on 11 January 1981
* 20 May 1982 – for absenting himself from his place of duty without authority from 18 May 1982 through 19 May 1982
* 8 June 1982 – for absenting himself from his unit without authority from 8 June 1982 through 10 June 1982
* 14 October 1982 – for absenting himself from his place of duty from on or about 0730, 14 October 1982, until on or about 1330, 14 October 1982

4.  A DA Form 3822 (Report of Mental Status Evaluation), dated 20 October 1982, shows the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, met Army retention requirements, and was psychiatrically cleared for any administrative action deemed appropriate by his command.

5.  On 16 November 1982, the applicant's immediate commander initiated discharge action against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The applicant was advised by consulting counsel of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him.  He did not submit statements in his own behalf and waived his right to an administrative separation board.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  On 6 December 1982, the approval authority waived the requirement for rehabilitative measures and approved the applicant's discharge as initiated by his immediate commander.  He directed the issuance of a discharge under other than honorable conditions.

7.  On 15 December 1982, the applicant was discharged under other than honorable conditions.  His DD Form 214 shows he completed 3 years, 1 month, and 22 days of total active service.

8.  Although the applicant disputes the details surrounding his acceptance of NJP for being absent without leave in June 1982 during a field training exercise with an Army National Guard unit, there is no evidence of record corroborating his contention.  On the contrary, his records contain a sworn statement, dated 9 May 1982, written and signed by a commissioned officer from the Nebraska Army National Guard attesting to the applicant's absence without leave during the time covered by the NJP.

9.  On 4 April 1984, the applicant appealed to the Army Discharge Review Board for an upgrade of his discharge.  On 2 July 1986, the Army Discharge Review Board denied his request, concluding that his discharge and the character of his service were both proper and equitable based on his pattern of misconduct.

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 considered appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7a states 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.  Army Regulation 635-200, 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 for an upgrade of his discharge under other than honorable conditions to honorable was carefully considered.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations 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.

3.  His records reflect his acceptance of NJP under the UCMJ on four separate occasions.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing there is no basis for upgrading his discharge to honorable or general under honorable conditions.

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 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)                                         AR20140017258



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ABCMR Record of Proceedings (cont)                                         AR20140017258



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