BOARD DATE: 25 August 2015
DOCKET NUMBER: AR20150001202
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 general discharge under honorable conditions to honorable.
2. The applicant states, in effect, he desires a discharge upgrade.
3. The applicant provides:
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 13 January 2015
* 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 enlisted in the Regular Army on 3 November 1981.
3. Records show he was counseled on multiple occasions for:
* being late for duty
* off-post behavior and conduct
* dress and appearance
* missing formation
4. On 10 December 1982, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the prescribed time.
5. On 14 December 1982, his status changed from present for duty to absent without leave (AWOL).
6. On 29 December 1982, his status changed from AWOL to present for duty.
7. On 28 January 1983, he accepted NJP under the provisions of Article 15, UCMJ, for disobeying an order and being AWOL from on or about 14 December 1982 until on or about 29 December 1982. He received a 30-day suspended reduction in grade from E-3 to E-2 and a 30-day restriction to the limits of his battery's area.
8. On 10 February 1983, his suspended reduction to E-2 was vacated due to his failure to go to his appointed place of duty at the prescribed time on or about 9 February 1983.
9. On 10 February 1983, he received a letter of reprimand for involvement in an affray with another Soldier.
10. On 14 February 1983, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty at the prescribed time on or about 9 February 1983. He received a 30-day suspended reduction to E-1 and 14 days of extra duty.
11. In a request for an involuntary psychiatric evaluation, dated 15 February 1983, his commander stated:
* he had one record of AWOL
* he had four records of NJP
* his character was unsatisfactory
* his efficiency was unsatisfactory
* his attitude toward superiors was good
* he got along well with others
* he did not keep to himself
* he cared for his equipment
* he cared for his personal appearance
* his duties were as assistant instructor
* he performed his duties satisfactorily
* he failed to be responsible for his actions when he was not being directly supervised
12. On 22 February 1983, he underwent a separation physical and he was found qualified for separation under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13. He also underwent a mental status evaluation on that date and he was psychiatrically cleared for any administrative action deemed appropriate by his command.
13. On 7 March 1983, his suspended reduction to E-1 was vacated due to his failure to go to physical training on or about 2 March 1983.
14. On 10 March 1983, his company commander notified him he was initiating action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13. His commander advised him of his rights.
15. On 11 March 1983, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects and the rights available to him. He submitted a statement in his own behalf in which he indicated:
* he did not believe his behavior had been substantially different from most people in the unit
* his discharge packet did not contain a waiver of rehabilitative transfer and he desired an opportunity to prove his value as a Soldier in another unit
* he liked the Army, he was proud to be a Soldier, and he desired to continue serving his country
16. On 17 March 1983, his commander recommended his discharge and transfer to the U.S. Army Reserve Individual Ready Reserve due to unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13. He stated:
* the applicant's willful and repetitive actions from 7 September 1982 to 17 March 1983 violated the standards of the UCMJ
* the applicant knew his actions would not be tolerated, 635 635 yet he persisted in continuing on a course of self-destruction and untimely termination of his military career
* the applicant had not been rehabilitatively transferred
* disposition under other means was not feasible or appropriate because the applicant would not develop sufficiently to participate satisfactorily in further military training or become a satisfactory Soldier
17. On 24 March 1983, the separation authority approved the applicants discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.
18. On 29 March 1983, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 4 months, and 27 days of creditable active military service.
19. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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.
b. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an upgrade of his general discharge under honorable conditions to honorable was carefully considered.
2. Records show he was counseled on multiple occasions prior to receipt of NJP. Based on his extensive record of indiscipline, his service clearly did not rise to the level of acceptable conduct and performance of duty for a fully honorable discharge.
3. The evidence shows he was properly and equitably discharged in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process.
4. In view of the above, there is no basis for granting the 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 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.
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