BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017169 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 BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017169 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. BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017169 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 upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect, he was a young man when he enlisted in the Army, and he joined because he wanted to protect and serve. At the time of his separation, he was close to completing his enlistment. He contends the Board should consider this fact, and feels, for this reason, he deserves some benefits (implying he should be permitted to receive benefits from the Department of Veterans Affairs (VA)). He further asserts the reason for his separation was he was not well liked, and did not agree with "the party" or his sergeants. He does not regret having enlisted in the Army, and wishes he had been smarter while in the military. 3. The applicant provides no additional documentary evidence. 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 10 September 1979 at age 18. He held military occupational specialty 19E (M48-M60 Armor Crewman). Following initial training, he was assigned to Fort Polk, LA, and arrived on, or about 9 January 1980. 3. Between December 1980 and February 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on three occasions: * 3 December 1980 for willfully disobeying the lawful order of his commander * 15 December 1980 for being disrespectful in language to two superior noncommissioned officers * 26 February 1981 for willfully disobeying the lawful order of his superior noncommissioned officer 4. On 22 April 1981, his commander initiated a bar to reenlistment action against the applicant using his three NJPs as the basis. The approval authority authorized the bar on 7 May 1981. 5. On 28 May 1981 the applicant again accepted NJP, this time for missing movement. 6. On 30 June 1981 he was convicted by a summary court-martial for four specifications of failing to go to his appointed place of duty at the time prescribed (also referred to as failure to repair (FTR)). The court sentenced him to 30 days confinement at hard labor, and directed the forfeiture of $250 per month of 1 month. The convening authority approved the sentence on 2 July 1981. He was sent to the U.S. Army Retraining Brigade, Fort Riley, KS to serve his sentence. 7. Following the completion of his sentence, he was reassigned to Fort Knox, KY. While at Fort Knox, he accepted NJP four times: * 2 February 1982 for being absent without leave (AWOL) from 19 to 26 January 1982; his punishment included restriction for 14 days, which was suspended, but later vacated * 2 March 1982 for two specifications of FTR * 25 June1982 for being AWOL from 18 May to 15 June 1982 * 15 July 1982 for willfully disobeying the lawful order of his commander 8. On 8 July 1982, his commander notified him in writing he was being considered for elimination under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-33b(1) (Patterns of Misconduct – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities). The basis for this action was the applicant's continuous willful acts that violated both military and civilian laws. The applicant acknowledged this notification. 9. On 8 July 1982, he consulted with counsel (a military attorney), and affirmed he had been advised as to the basis for the contemplated separation action. The applicant: * waived consideration of his case by an administrative separation board and/or personal appearance before a board * elected not to submit a personal statement in his own behalf * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws in the event he was issued a discharge under other than honorable conditions 10. On 28 July 1982, the separation authority approved the applicant's discharge, and directed the issuance of an Under Other Than Honorable Discharge Certificate. The applicant was discharged accordingly on 5 August 1982. 11. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, paragraph 14-33b(1), with a narrative reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities. His service was characterized as under other than honorable conditions. He was awarded or authorized the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Pistol Bar (.45 Caliber). 12. There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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 (Separation for Misconduct), Section V (Other Acts or Patterns of Misconduct), in effect at the time, states members are subject to separation under the provisions of this section for acts of misconduct and patterns of misconduct, to include frequent incidents of discreditable nature with civil or military authorities. An under other than honorable discharge is normally appropriate for a member separated under this provision. DISCUSSION: 1. The evidence of record shows the applicant displayed a pattern of misconduct and, based on this, his chain of command initiated separation action against him. 2. It appears his separation action met all requirements of law and regulation, and the evidence further indicates his rights were fully protected throughout the separation process. He was advised of his rights, was able to consult with legal counsel, and was given the opportunity to present matters on his behalf which he waived. 3. He asserts he was young and immature when he joined the Army. Records show the applicant was 18 years of age at the time of his enlistment and over age 20 when he was discharged. There is no evidence to suggest he was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 4. Based on his record of indiscipline, the applicant's service does not appear to have been consistent with the standards of acceptable conduct and performance of duty for Army personnel associated with a general or an honorable discharge. 5. Concerning the upgrade of his discharge to permit access to VA benefits, the ABCMR does not grant discharge upgrade requests solely to make an applicant eligible for such benefits. The Board decides each case individually, based upon its own merits. The granting of veteran’s benefits is not within its purview. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017169 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017169 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2