BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150004387 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 to general under honorable conditions. 2. The applicant states: * he was disciplined for his insubordinate conduct during his active duty service * he does not dispute the actions that contributed to the events resulting in his discharge * he was young and ignorant of the consequences of his actions * he feels he paid a very steep price for his behavior, as he has spent 30 years under the shadow of a discharge under other than honorable conditions * it has affected his benefits, employment, and even his personal and social life, as he is not eligible for membership in any fraternal organizations * he is much older and wiser now and with maturity has come the realization that he needs to at least attempt to correct this aspect of his life * he will be in need of health care and other benefits as he grows older and cannot obtain them without removal of this blemish from his record * he hopes his request will be favorably considered to allow him to move forward with respect and dignity regarding his military service * he is proud to say he is not the same person he was 30 years ago * he has learned many lessons in his life, as he has endured some self-inflicted problems * over the last few years he has turned his life around and learned that all things are possible in life by putting God first * he has changed the way he thinks, the things he does, and the people he associates with * his life has been moving in a positive direction and he would like nothing more than to continue on this path * receiving an upgrade would allow him to continue to come in contact with positive people in veterans' programs, helping him get his life on track 3. The applicant provides: * self-authored statement * six witness statements 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 15 January 1980 at 19 1/2 years of age. 3. 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: * 4 February 1980 – for failing to go to his appointed place of duty * 6 June 1980 – for failing to go to his appointed place of duty * 14 October 1980 – for being disrespectful in language to his superior noncommissioned officer * 14 July 1981 – for failing to go to his appointed place of duty * 6 November 1981 – for failing to obey a lawful order pertaining to fireguard duty 4. His DA Form 2-2 (Insert Sheet to DA Form 2-1 – Record of Court-Martial Conviction) shows he was charged with and convicted of one count of failing to repair, one count of disrespecting a noncommissioned officer, and one count of disobeying a lawful order on or about 24 September 1981 in 716th Military Police Battalion Summary Court-Martial Order Number 9 adjudged on 16 October 1981. 5. His DA Form 3822-R (Report of Mental Status Evaluation), dated 10 December 1981, shows a mental status evaluation was requested for the applicant who was being considered for discharge because of misconduct. He was found to be mentally responsible, meet the retention requirements of Army Regulation 40-501(Standards of Medical Fitness), and have the mental capacity to understand and participate in the proceedings. 6. Additional facts and circumstances surrounding his discharge are not in his available records for review. 7. On 16 December 1981, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct – frequent incidents of a discreditable nature with civil or military authorities. His service was characterized as under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 10 months, and 19 days of net active service with 12 days of lost time from 16 October 1981 through 28 October 1981. 8. The applicant provided six witness statements attesting to his sincerity, integrity, regret for his past behavior, upstanding character, positive contributions to the community and belief that he has long since paid for his mistakes, rendering him deserving of an upgraded discharge. 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 considered appropriate for a Soldier discharged under this chapter. 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. 11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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 five separate occasions and accrual of 12 days of 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. He was nearly 20 years old at the time of his first incident of misconduct and over 21 years old at the time of his last incident. 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 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) AR20150004387 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004387 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1