IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150001391 


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.

2.  The applicant states:

* he was young and did not understand the ways of life at the time
* he loves his country and wanted to serve, which he did to the best of his ability
* he hopes a discharge upgrade will improve his employability and allow him to enroll in classes

3.  The applicant provides no additional information.

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 9 January 1980.

3.  Headquarters, 1st Battalion, 63d Armor Brigade, Summary Court Martial Order Number 6, dated 29 July 1981, shows the applicant was charged with and found guilty of two specifications of being absent without leave (AWOL):

* from 6 March 1981 through 23 April 1981
* from 2 June 1981 through 1 July 1981 when he was confined by military authorities after his surrender

4.  Records indicate he was AWOL on the following additional occasions:

* from 16 November 1981 through 23 November 1981
* from 4 December 1981 through 9 December 1981
* from 4 January 1982 through 5 January 1982

5.  His records contain documentation showing 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:

* 25 February 1981, for communicating a threat to a noncommissioned officer, being disrespectful in language, and disobeying a direct order
* 16 December 1981, for being AWOL from 16 November 1981 through 23 November 1981 and again from 30 November 1981 through 9 December 1981
* 9 January 1982, for being AWOL from 4 January 1982 through 5 January 1982
* 25 March 1982, for being drunk and disorderly
* 29 April 1982, for disobeying a written order to sign in with the charge of quarters (CQ) while on restriction
* 12 May 1982, for failing to sign in with the CQ every 2 hours while on restriction, failing to be at his appointed place of duty for extra duty, and failing to turn his stereo system in to his first sergeant as ordered
* 17 June 1982, for twice failing to go at the time prescribed to his place of duty

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 14 May 1982, shows the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), and was psychiatrically cleared for any administrative action deemed appropriate by his command.

7.  On 19 May 1982, the applicant's immediate commander notified him of his recommendation to initiate discharge action against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b.  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.  On 19 May 1982, he acknowledged receipt of the recommendation for elimination.  He waived his right to request consideration of his case by a board of officers and did not submit statements in his own behalf.  He acknowledged he understood that as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  On 14 June 1982, the approval authority approved the recommended discharge under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct – frequent incidents of a discreditable nature with civil or military authorities.  He directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 18 June 1982, he was discharged under other than honorable conditions.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 1 month, and 13 days of net active service.

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

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.  


	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 applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  The available evidence shows he 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 his rights were fully protected throughout the separation process.

3.  His records reflect his acceptance of NJP under the UCMJ on seven separate occasions, he was found guilty of being AWOL by a summary court-martial, and he was also AWOL on five additional occasions.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing evidence, 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)                                         AR20150001391



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001391



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1