RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080002008 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge be upgraded to honorable.

2.  The applicant states, in effect, that his contract was breached by the Army because he was trained as a supply specialist and then placed in a motor pool as an artillery man during his assignment in Germany.  He contends that after his motor pool day was finished he was made to complete all the unfinished work in the battery supply room until late hours of the night.  He goes on to state that he went to his first sergeant and commanding officer and requested a discharge under breach of contract; however, he was told that he was a model Soldier with no grounds to put him out of the Army.  The next day he went absent without leave (AWOL) to give them grounds to put him out.  He further states that after his summary court-martial he was sent to jail and then he was sent to the Retraining Brigade at Fort Riley, Kansas where he was mentally and physically abused by the drill sergeants.    

3.  The applicant provides no additional evidence in support of his application.

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 1 February 1982 for a period of 3 years for training in military occupational specialty (MOS) 76Y (unit supply specialist) and an assignment in Europe.  He successfully completed basic combat training and advanced individual training in military MOS 76Y and was transferred to Germany on 10 June 1982.  His DA Form 2-1 (Personnel Qualification Record) shows that he was assigned to Battery B, 2nd Battalion, 3rd Field Artillery in Germany and that his duty MOS was 76Y and his principal duty was armorer.  

3.  While in Germany, on 5 November 1982, contrary to his plea, the applicant was convicted by a summary court-martial of being AWOL from 27 September 1982 to 23 October 1982.  He was sentenced to be reduced to E-1 and to be confined at hard labor for 30 days.  On 6 November 1982, the convening authority approved the sentence.   

4.  The applicant was transferred to Fort Riley, Kansas on 17 November 1982 to complete his sentence to confinement.  He was sent to the Retraining Brigade at Fort Riley on 29 November 1982.  

5.  On 8 December 1982, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.    

6.  On 27 December 1982, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.     

7.  On 5 January 1983, nonjudicial punishment was imposed against the applicant for failing to obey two lawful orders.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.    

8.  On 7 January 1983, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12, for misconduct (pattern of misconduct).  His unit commander based his recommendation for separation on the applicant’s summary court-martial and three nonjudicial punishments.

9.  On 12 January 1983, the applicant consulted with counsel and waived consideration of his case by an administration separation board.  He also acknowledged that he might encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued.  He elected not to submit a statement on his own behalf.  

10.  On 17 January 1983, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

11.  Accordingly, the applicant was discharged on 19 January 1983 under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  He had served a total of 9 months and 28 days of creditable active service with 51 days of lost time due to AWOL and confinement.     
12.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

14.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that he has a general discharge.  Evidence of record shows that he was discharged under other than honorable conditions. 

2.  The evidence of record does not support the applicant’s contention that his contract was breached by the Army.  His enlistment contract shows he enlisted for training in MOS 76Y and an assignment in Europe.  His DA Form 20 showed that his principal duty was armorer during his assignment in Germany and his duty MOS was 76Y.  In any case, he was only guaranteed training in MOS 76Y, he was not guaranteed an assignment as a 76Y.  

3.  The applicant’s record of service included one summary court-martial conviction, 3 nonjudicial punishments, and 51 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

4.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

XX_____  __XX____  __XX____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___ XXX ______
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002008


5


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508