IN THE CASE OF:  

		BOARD DATE: 7 May 2015

		DOCKET NUMBER:  AR20140017594


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 a general discharge.

2.  The applicant states, in effect, he was discharged due to petty charges: spitting on the sidewalk, needing a haircut, and destruction of Government property (he shook a vending machine).  The worst thing that he did was fall asleep on guard duty after he was put on guard duty with walking pneumonia.  A captain told him he would drum him out of the Army and he did it with personal attacks of silly charges at first.  Eventually, they became overwhelming.  He was restricted to post and his pay was being taken.  He finally accepted the discharge because he was young and did not realize he should have fought back instead of quitting.  At this point in his life he believes it is important to correct his discharge. He was not a bad Soldier; he just made an enemy of a captain.  

3.  The applicant did not provide any additional supporting documentation.

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 27 December 1979.  He held military occupational specialty 19D (Cavalry Scout).

3.  He was assigned to Fort Polk, Louisiana.

4.  His record shows he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on:

* 4 January 1980, for being drunk and disorderly
* 3 September 1980, for failing to obey a lawful order
* 18 November 1980, for two incidents of failing to go to his appointed place of duty 
* 27 January 1981, for being derelict in the performance of his duties by being found asleep on guard duty
* 11 March 1981, for stealing from the Army Air Force Exchange (Service) Center

5.  On 6 February 1981, the applicant's immediate commander recommended his separation for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), due to frequent incidents of a discreditable nature with civil or military authorities.  The commander stated the applicant had established a pattern of shirking military responsibilities as evidenced by numerous failures to repair and insubordination to his chain of command when ordered to perform his duty.  He willfully disobeyed orders, and on occasion was criminally negligent by leaving his weapon unsecured and sleeping on guard.  The applicant was determined to be a hazard to his unit and it was believed he could be expected to continue to be.

6.  The applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.

7.  The applicant's commander initiated separation action against him
on 18 February 1980.  The commander stated the applicant had been given extensive corrective counseling, school of the Soldier, served in the Correctional Custody Facility, and he had been given the "benefit of the doubt" on several occasions.  He had not responded favorably to any rehabilitative effort.  He continued to exhibit acts of a discreditable nature.  The applicant had been counseled on 15 occasions.

8.  The chain of command recommended approval of the applicant's discharge.

9.  The separation authority approved the discharge and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 3 April 1981.  He had completed 1 year, 4 months, and 7 days of net active service.

11.  On 22 June 1988, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.

12.  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 a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7b states 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 has submitted neither probative evidence nor a convincing argument in support of his request.

2.  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 therefor were appropriate considering all of the facts of the case.

3.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20110025102



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ABCMR Record of Proceedings (cont)                                         AR20140017594



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