IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140010352 


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 general under honorable conditions discharge.

2.  The applicant states: 

	a.  he believes his discharge was unjust because:

* he was never reduced in rank
* he was never convicted in a court of law
* he was never confined or incarcerated
* unjust lies were told about him as a result of jealousy

	b.  when you look at his military service in the 82nd Airborne Division, he was one of the best Soldiers in his unit, but there was a lot of racism at that time.

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 13 November 1974.  After completing initial training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while on active duty was specialist/E-4.

3.  During his active service he was awarded or authorized:

* Parachutist Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  His records show he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:

* on 21 January 1975, for one specification of making a false statement
* on 23 December 1977, for one specification of disobeying a lawful order from a noncommissioned officer, his First Sergeant, to sign out and leave a telephone number where he could be contacted 

5.  His record contains four DA Forms 2166-5 (Enlisted Evaluation Report) covering the period May 1976 through October 1977, which essentially describe the applicant's duty performance as follows:

* he is a very good Soldier in most areas of military duty except for appearance and personal responsibility
* his duty performance required close monitoring
* he showed the potential to be an outstanding Soldier, but was not handling his personal affairs in a mature manner
* he accomplished field duties with enthusiasm, but in garrison his personal appearance as poor and he required extensive counseling because of letters of indebtedness
* he displayed excellent physical conditioning, but lacked the initiative to improve his duty performance
* he required counseling regarding his personal behavior as it needed much improvement

6.  Available records show he was confined by civil authority for the period 25 April 1978 through 27 April 1978 because of worthless check charges.
7.  On 14 April 1978, the applicant's unit commander notified him of his intent to initiate separation action under the provisions of Army Regulation 635-200, chapter 14, section V (Other Acts or Patterns of Misconduct).  In his separation request, the commander identified the basis of his action as an established pattern for showing a dishonorable failure to pay just debts.

8.  On 19 April 1978, the applicant met with counsel and was advised of the basis for the contemplated separation action.  He requested consideration of his case by a board of officers and asked to personally appear before the board.  He did not submit statements in his own behalf, but requested representation by counsel.  He stated he understood he could encounter considerable prejudice should he receive either a general discharge under honorable conditions or an under other than honorable conditions discharge.  

9.  On 19 May 1978, the applicant's commander prepared a memorandum, SUBJECT:  Statement of Formal Counseling in Support of Administrative Action.  In this memorandum were enumerated 22 instances where the applicant was counseled regarding indebtedness.  Also shown was that the applicant owed $1,533.00 to fellow Soldiers within his unit.

10.  On 23 May 1978, the applicant's commander requested waiver of the requirement for a rehabilitative transfer.  He stated, despite the efforts of the chain of command, the applicant continued to display a chronic pattern of indebtedness.  Additionally, he was borrowing money and equipment from fellow Soldiers.  Counseling was having no effect.  This request was approved by the separation authority on 28 June 1978.

11.  On 6 June 1978, an administrative discharge board was appointed to review the applicant's case.  The applicant and his counsel were directed to appear before the board.  The applicant was permitted to call witnesses.  

12.  The administrative discharge board of officers was convened on 1 July 1978.  The applicant was present with counsel.  He was permitted to challenge members of the board and to cross-examine all witnesses.  Based upon the evidence, the board found the applicant should not continue on active duty due to an established pattern of dishonorably failing to pay just debts.  Rehabilitation was not deemed possible.  The board recommended a general discharge under honorable conditions.

13.  On 12 July 1978, the separation authority approved the discharge action and directed the applicant receive a general under honorable conditions discharge.  On 21 July 1978, the applicant was discharged accordingly.
14.  His DD Form 214 (Report of Separation from Active Duty) shows he received a general discharge under honorable conditions.  It shows he was separated under the provisions of Army Regulation 635-200, 
paragraph 14-33b(3).  It also shows he completed 3 years, 8 months, and 9 days of creditable active service, with no lost time.

15.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, 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, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may issue an honorable discharge or general discharge if warranted by the overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions of the regulation.

	b.  Paragraph 1-13a 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded was carefully considered, but there was insufficient evidence to support his request.

2.  The applicant claims the characterization of his service was unjust.  The evidence of record, however, confirms the applicant's separation was based upon a pattern of misconduct and processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met 



and the rights of the applicant were fully protected throughout the separation process.  

3.  Based upon his personal conduct, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.  Accordingly, there is no basis upon which to grant the applicant an honorable 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)                                         AR20140010352





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ABCMR Record of Proceedings (cont)                                         AR20140010352



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