BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150002575 


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 is not questioning the legality of his discharge
* he is a new person and would like to correct his past mistakes if given the chance
* he made some big mistakes and is asking for help
* his ability to serve was impaired by his youth and immaturity
* his mother passed away in 1978 and at the time he was living with his grandmother who had a difficult time dealing with a teenage grandson who ran the streets
* his grandmother died a year later and he was told that no other family members would care for him as she did
* his family thought it was best to send him away, so by the summer of 1979 he enlisted in the Armed Forces
* personal problems impaired his ability to serve
* with his grandmother being deceased and no ties to his mother's side of the family, he felt he was alone without the knowledge of what was right and what was wrong
* he was bound to fail being in another country and following the wrong crowd
* his mistakes led him down a path he knew nothing about
* his company commander told him guys like him from Philadelphia weren't worth his time or the Army's time
* he was subjected to racism in the Army that he had never previously experienced as a young man
* he began having problems with authority and not wanting to listen or follow orders
* he found some true friends in the Army and took a lot of pride in being a Soldier and representing his country
* he was only 19 years old at the time

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 14 August 1979 at 18 years of age.  After completion of initial entry training, he was assigned to the 2d Infantry Division in Korea.

3.  Records indicate he was absent without leave (AWOL) from 1 September 1980 through 3 September 1980.  He was confined at the Eighth U.S. Army Confinement Facility from 17 September 1980 through 9 October 1980, after which he was reassigned to the U.S. Army Retraining Brigade, Fort Riley, Kansas.

4.  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:

* 2 April 1980, for failure to go to his appointed place of duty and wrongful possession of an Armed Forces Liberty Pass
* 13 June 1980, for failure to go to his appointed place of duty on two occasions and wrongful possession of an Armed Forces Liberty Pass on two occasions
* 6 November 1980, for failure to go to his appointed place of duty
* 7 December 1980, for failure to go to his appointed place of duty

5.  On 29 October 1980, 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.

6.  He was again confined by military authorities from 16 December 1980 through 8 January 1981.  On 6 January 1981, 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 he may be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of issuance of a discharge under other than honorable conditions.

7.  On 8 January 1981, 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.

8.  On 9 January 1981, he was discharged under other than honorable conditions.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 3 months, and 7 days of net active service.

9.  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.

10.  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 four separate occasions.  He was AWOL on one occasion and twice confined by military authorities, amounting to 48 days lost time.  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.  Although he claims to have been young and immature at the time of his service, there is no evidence indicating the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  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)                                         AR20150002575



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ABCMR Record of Proceedings (cont)                                         AR20150002575



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