IN THE CASE OF:	  

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150001094 


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, in effect, that his discharge under other than honorable conditions be upgraded to a more favorable discharge. 

2.  The applicant states that he was a young immature person at the time and he would like to be able to go back in time to make things better but obviously he cannot.  However, he can try and do things today that will mend that period of time and he is really trying to be the best person he can be today.

3.  The applicant provides a one-page letter explaining his application, a copy of his DD Form 214 (Report of Separation from Active Duty), and three third-party letters of support.

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 21 July 1977 for a period of 3 years, training as a cannon crewman and assignment to the 1st Infantry Division.  He completed his one-station unit training at Fort Sill, Oklahoma and was transferred to Fort Riley, Kansas on 31 October 1977.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Conduct (UCMJ), as follows:

* on 24 October 1978 for being absent without leave (AWOL) from 12 October to 13 October 1978
* on 21 December 1978 for three specifications of failure to go to his appointed place of duty
* on 13 March 1979 for being AWOL from 31 January to 12 February 1979
* on 20 March 1979 for being AWOL from  24 to 26 February 1979

4.  On 7 March 1979, the applicant’s commander notified him that he was initiating action to bar him from reenlistment based on his disciplinary record and the fact that he was arrested by civil authorities for assault and was confined by civil authorities.  The applicant declined the opportunity to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 30 March 1979.

5.  On 27 March 1979, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Enlisted Personnel – Administrative Separations), chapter 14 for misconduct.  He cited the applicant’s disciplinary record, to include conviction by civilian authorities that included probation for 1 year, his poor performance and his failure to respond to repeated counseling and rehabilitation attempts as the basis for his recommendation.

6.  On 13 April 1979 the applicant consulted with counsel.  He was advised of the basis for the contemplated separation action and its effects on him.  He was advised he could expect to encounter substantial prejudice in civilian life and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws if he received an under other than honorable conditions discharge.  He waived his rights and elected not to submit a statement in his own behalf.  

7.  On 18 May 1979 the appropriate separation authority (a major general) approved the applicant’s discharge and directed issuance of an under other than honorable conditions discharge. 

8.  Accordingly, he was discharged under other than honorable conditions on 30 May 1979 under the provisions of Army Regulation 635-200, paragraph 14-33b (1) for misconduct.  He had served 1 year, 9 months and 25 days of active service and had 15 days of lost time.

9.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  The applicant provided three character reference letters that independently attested to the applicant’s post-service conduct.  He is a trustworthy adult who can be relied upon to assist others.  He is an active member of Alcoholics Anonymous and serves as an inspiration for others.  

11.  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 consisting solely of minor military disciplinary infractions), 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 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	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.  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.

2.  The applicant's contentions have been noted to include his post-service sobriety; however, they are not sufficiently mitigating when compared to the repeated nature of his offenses during his short period of service.

3.  Due to his pattern of misconduct, to include a civilian conviction, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Considering all the facts of this case, an under other than honorable conditions discharge was appropriate.  The applicant has not provided sufficient mitigating evidence to show an error or an injustice in his separation processing.  

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)                                         AR20150001094



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001094



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1