PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 17 January 2002
         DOCKET NUMBER: AR2001065131


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his discharge under other than honorable conditions be upgraded for entitlement to Veterans Administration medical benefits.

3. The applicant states that he served 3 years and 9 months out of a 4 year tour. He contends that he was in the 82nd Airborne, the Old Guard and the “#1 Firing Party.” He also contends that he received a Good Conduct Medal. He states that he did not do anything to deserve a discharge under other than honorable conditions.

4. The applicant’s military records show that he enlisted on 22 January 1979 for a period of 4 years. He successfully completed basic training and airborne training and was transferred to Fort Bragg, North Carolina, for duty as an infantryman.

5. The applicant received the first award of the Good Conduct Medal for the period 26 January 1979 to 25 January 1982.

6. On 1 March 1982, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 27 January 1982 to 28 January 1982. His punishment consisted of a reduction to E-3 (suspended for 6 months), a forfeiture of pay and restriction and extra duty. The suspended portion of the sentence (reduction to E-3) was subsequently vacated.

7. On 9 June 1982, nonjudicial punishment was imposed against the applicant for being AWOL from 31 May 1982 to 31 May 1982 (20 hours). His punishment consisted of a reduction to E-2 (suspended for 180 days), a forfeiture of pay and restriction and extra duty. On 2 August 1982, the suspended portion of the sentence (reduction to E-2) was vacated.

8. Between 28 July 1981 and 18 July 1982, the applicant’s monthly counseling statements show he was counseled for various infractions which included disrespect, being late for duty, failure to accomplish missions and poor attitude.

9. On 3 August 1982, the applicant received a Letter of Reprimand for yelling out the window of a bus to a woman standing in the parking lot, making a reference to her underwear; and for being absent from duty [he went on sick call for his foot without seeing any member of his chain of command].

10. On 3 August 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct because of frequent incidents of a discreditable nature with civil or military authorities. The unit commander based his recommendation for separation on the applicant’s frequent acts of misconduct in spite of counseling by his chain of command; that he has shown by his actions a lack of responsibility, sound judgment and an attitude that is not conducive to continued service; and his two Article 15’s.

11. On 5 August 1982, after consulting with counsel, the applicant waived consideration of his case before a board of officers, waived a personal appearance before a board of officers and elected not to submit a statement on his own behalf. He also acknowledged that as a result of a discharge under other than honorable conditions, he may be ineligible for many or all of his benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

12. On 6 August 1982, the applicant’s unit commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct because of frequent incidents of a discreditable nature with civil or military authorities.

13. Prior to separation, the applicant underwent a mental status evaluation and a separation medical examination and was found qualified for separation with a physical profile of 111111.

14. On 13 October 1982, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty (formation). His punishment consisted of a reduction to E-1, forfeiture of $133 per month for 1 month and 14 days of restriction and extra duty.

15. On 14 October 1982, the intermediate commander concurred with the recommendation for separation.

16. The separation authority approved the recommendation for discharge on
1 November 1982 and directed the issuance of a discharge under other than honorable conditions.

17. Accordingly, the applicant was discharged under other than honorable conditions on 5 November 1982 under the provisions of Army Regulation
635-200, chapter 14, for misconduct because of frequent incidents of a discreditable nature with civil or military authorities. He had served 3 years,
9 months and 13 days of total active service with 1 day lost due to AWOL.

18. There is no evidence that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

19. Army Regulation 635-200, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed; or rehabilitation is impracticable or he is not amenable to rehabilitation measures; and an unfit medical condition is not the direct or substantial contributing cause of his misconduct. Members are subject to separation under the provisions of this section for the following patterns of misconduct: (1) frequent incidents of discreditable nature with civil or military authorities, (2) an established pattern for shirking, (3) an established pattern showing dishonorable failure to pay just debts, and (4) an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. A discharge under other than honorable conditions is normally appropriate for a soldier discharged for acts or patterns of misconduct. However, the discharge authority may direct an honorable or general discharge if such are merited by the soldier’s overall record.

20. Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

21. Army Regulation 635-200, paragraph 3-7, 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. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

CONCLUSIONS:

1. The Board considered the applicant’s contention that he wants his discharge upgraded to allow him entitlement to VA medical benefits. However, the Board does not grant relief solely for the purpose of obtaining medical benefits.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3. The Board reviewed the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

4. The Board notes that the regulation in effect at the time authorized the discharge authority to direct a general discharge if such is merited by the soldier’s overall record.

5. Based on the applicant’s length of service, no record of judicial punishment, the minor nature of his infractions and his first award of the Good Conduct Medal, the Board concludes that the applicant’s record is satisfactory and a general discharge is warranted.

6. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned received a general discharge at the time of his separation from active duty on 5 November 1982.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

JLP_____ CJP____ KWL_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Jennifer L. Prater____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001065131
SUFFIX
RECON
DATE BOARDED	20020117
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19821105
DISCHARGE AUTHORITY	AR 635-200 Chapter 14
DISCHARGE REASON	Misconduct due to frequent incidents of a discreditable nature with civil or military authorities
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.