IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150014558 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150014558 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. IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150014558 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 under honorable conditions (general) discharge to an honorable discharge. 2. The applicant states, in effect, he has paid his dues and deserves the change. He has been a good Veteran for 35 years; he has worked for the Department of Veterans Affairs for a year and a half. 3. The applicant provides no additional evidence in support of his request. 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 June 1979. 3. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the time prescribed on or about 7 July 1980 and on or about 19 June 1981. 4. The applicant's DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record – Part II) – Record of Court-Martial Conviction) shows he was convicted by summary court-martial on 22 January 1981 of the following offenses: * failure to repair, on or about 8 Jan 1981 and on or about 11 January 1981 * disobedience, on or about 6 January 1981 and on or about 14 January 1981 5. A DA Form 3622-R (Report of Mental Status Evaluation), dated 10 July 1981, shows the applicant underwent a mental status evaluation as part of a physical examination for administrative discharge from the Army. No mental health problems were noted that required treatment or disposition through medical channels. He was cleared for any administrative and disciplinary action deemed appropriate by his command. 6. The applicant's commander notified him on 14 July 1981 that he was recommending his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct based on continuing willful acts in violation of the UCMJ and civil laws. The commander cited, as the reasons for the proposed separation action, the applicant's record of court-martial conviction and nonjudicial punishment. On the same day, the applicant acknowledged receipt of the separation notification. 6. The applicant acknowledged on 27 July 1981 that he had been counseled and advised of the contemplated separation action. He elected to be represented by counsel and to have his case heard before a board of officers. He indicated he would not submit statements in his own behalf. He understood he may expect to encounter substantial prejudice in civilian life if an under honorable conditions discharge was issued to him. 7. On 29 September 1981, he applicant appeared before a board of officers tasked with considering his elimination from military service under the provisions of Army Regulation 635-200. After careful consideration of his case, the board recommended his separation under the provisions of Army Regulation 635-200 and the issuance of a General Discharge Certificate. 8. The approval authority approved the recommended discharge on 7 December 1981, under the provisions of Army Regulation 635-200, paragraph 14-33b, and directed he receive an under honorable conditions (general) characterization of service. 9. The applicant was discharged on 10 December 1981, under the provisions of Army Regulation 635-200, chapter 14-33b, by reason of misconduct, frequent incidents of a discreditable nature with civil or military authorities. He completed 2 years, 5 months, and 6 days of net active service during this period. 10. There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a review of his discharge within its 15-year statute of limitations. REFERENCES: 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. 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. c. 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, and abuse of illegal drugs. 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. DISCUSSION: 1. The applicant's request for an upgrade of his under honorable conditions (general) discharge was carefully considered. 2. The evidence of record confirms the applicant demonstrated he could not or would not meet the acceptable standards required of enlisted personnel, as evidenced by the NJP and summary court-martial he received. Accordingly, his immediate commander initiated separation action against him. 3. The applicant's administrative board and separation actions were properly and equitably conducted in accordance with applicable regulations in effect at the time. All requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014558 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014558 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2