BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017084 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: 11 April 2017 DOCKET NUMBER: AR20150017084 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: 11 April 2017 DOCKET NUMBER: AR20150017084 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 his discharge be upgraded to honorable. 2. The applicant states that his discharge was harsh considering he was not even aware there was a problem with him possessing the merchandise in question. He had a serious problem with drugs and alcohol for many years but has been clean and sober since 7 June 2015. 3. The applicant provides no additional 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. He enlisted in the Regular Army on 31 July 1975. 3. His records contain an approved DA Form 4126-R (Bar to Reenlistment Certificate), dated 6 November 1979. This document shows his misconduct included: * nonjudicial punishment under Article 15 for resisting apprehension * nonjudicial punishment Article 15 for being absent without leave from 5 November on 31 October 1979 * numerous negative counseling statements for various infractions including multiple instances of disorderly conduct, assault, missing formations, and missing work call 4. On 6 November 1979, he was notified by his commander that action was being taken to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for patterns of misconduct. The notification advised him of his rights to consult with counsel, to present his case before a board of officers, and to submit statements in his own behalf. 5. He consulted with counsel and was advised of his rights. The applicant acknowledged receipt of his commander's intent to separate him. Counsel advised him of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to him. He elected not to statements in his own behalf. He elected a personal appearance before a board of officers; however. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions 6. On 16 January 1980, subsequent to his acknowledgement, his commander initiated separation action against him in accordance with Army Regulation  635-200, chapter 14, for misconduct, frequent incident of a discreditable nature with civil or military authorities. 7. On 29 January 1980, the applicant again met with legal counsel and he changed his elections. He waived consideration of his case before a board of officers, waived a personal appearance, and declined to submit statements on his behalf. He also acknowledged he could expect to encounter substantial prejudice in civilian life. 8. On 1 February 1980, the separation authority approved the applicant's discharge and directed characterization of his service as under other than honorable conditions. 9. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with an under other than honorable conditions characterization of service. He completed 1 year, 9 months, and 2 days of net active service during this period. He had prior active service of 2 years, 9 months, and 11 days. 10. The Army Discharge Review Board denied his request to upgrade his discharge on 16 July 1983. REFERENCES: 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, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for misconduct. 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: 1. The evidence of record shows the applicant committed multiple acts of misconduct for which he received nonjudicial punishment or counseling. Based on his history of misconduct, he was barred from reenlisting in the Army. Accordingly, his commander initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. The separation authority determined he would be separated with service characterized as under other than honorable conditions. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017084 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017084 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2