IN THE CASE OF:	  

		BOARD DATE:	

		DOCKET NUMBER:  AR20080010568 


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 under other than honorable conditions discharge to a general discharge. 

2.  The applicant states that his discharge was inequitable because his infractions were isolated in nature and did not result in a court-martial.  He further adds that his elimination and characterization of service was based on his superiors’ frequent assumption that he was malingering and unfit for rehabilitation.  He also adds that his superiors refused to allow him to attend the funeral of an immediate family member and that he was undergoing social, physical, and psychological issues due to constant leg and knee pains that occurred during his military service.  He concludes that his superiors targeted him, seeking to force him out of the Army.         

3.  The applicant provided the following additional documentary evidence in support of his application. 

	a.  DD Form 214 (Report of Separation from Active Duty), dated 23 January 1979.

	b.  DA Form 2-1 (Personnel Qualification Record).

	c.  Complete approved recommendation for elimination from the Army packet with allied documents.

	d.  DA Forms 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 20 January 1978, 7 June 1978, 14 January 1978, 9 January 1978, and 16 June 1977.

	e.  Standard Forms 88 (Report of Medical Examination), dated 26 November 1976 and 31 October 1978.

	f.  Standard Form 93 (Report of Medical History), dated 26 November 1978.

	g.  Standard Forms 600 (Chronological Record of Medical Care), dated on miscellaneous dates in 1977 and 1978.

	h.  Civilian clinical records, reports, charts, notes, diagnosis, and examinations, dated on miscellaneous dates in 1981, 1993, and 1994.

	i.  Self-authored statement, dated 27 May 2008 (on a DD Form 293 (Application for Review of Discharge or Dismissal From the Armed Forces of the United States))

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's records show he enlisted in the Regular Army for a period of 3 years on 27 November 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s awards and decorations include the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any achievements, significant acts, or recognition during his military service.   

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ as follows:

	a.  on 12 July 1977, for twice disobeying a lawful order from a superior noncommissioned officer, on or about 5 July 1977 and on or about 6 July 1977, and being disrespectful in language towards a superior noncommissioned officer, on or about 5 July 1977.  His punishment consisted of forfeiture of $75.00 pay and 7 days of extra duty; 

	b.  on 9 January 1978, for being absent without leave (AWOL), during the period on or about 2 January 1978 through on or about 5 January 1972, and wrongfully possessing 15 rounds of 7.62 blank ammunition, 3 rounds of 76.2 tracers, and 2 rounds of 5.62, on or about 6 January 1978.  His punishment consisted of reduction to private (PV2)/E-2 (suspended for 90 days) and 7 days of extra duty; 

	c.  on 14 January 1978, the suspension of the applicant’s punishment of reduction to PV2/E-2 was vacated and the unexecuted portion of the punishment was ordered executed;

	d.  on 29 January 1978, for failing to go to his appointed place of duty on or about 14 January 1978 and being disrespectful in language towards a superior noncommissioned officer, on or about 19 January 1978.  His punishment consisted of 7 days of correctional custody; and

	e.  on 7 July 1978, for violating a general regulation by carrying an unregistered privately owned weapon (.25 caliber) while on duty.  His punishment consisted of forfeiture of $103.00 pay for one month, 7 days of extra duty, and reduction to PV2/E-2 (suspended for 6 months).

5.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 shows he was reported AWOL during the periods 2 January 1978 to 4 January 1978; 22 June 1978 to 25 June 1978; and 9 January 1978 to 14 January 1978.

6.  On 14 November 1978, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant, citing his multiple instances of Article 15s and extensive history of misconduct that included being AWOL, destroying government property, threatening another person with a gun, driving violations, disobeying orders, disrespecting noncommissioned officers, wrongfully possessing marijuana, wrongfully possessing ammunition, and several other incidents of misconduct.  The applicant was furnished with a copy of the Bar to Reenlistment Certificate; but, he elected not to submit a statement on his own behalf.   The approval authority subsequently approved the applicant’s bar to reenlistment on 11 December 1978.

7.  On 5 December 1978, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations), for misconduct, frequent incidents of a discreditable nature with civil or military authorities. 

8.  On 18 December 1978, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised 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/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and waived representation by counsel.

9.  The applicant also acknowledged that he understood that if a general discharge under honorable conditions was issued to him, he may encounter substantial prejudice in civilian life, and that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both, Federal and State laws

10.  On 18 December 1978, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  The immediate commander cited the applicant’s failure to respond to assistance offered by the Army in overcoming his problems and that he had been in frequent trouble with military authorities, as evidenced by his 5 Article 15s, was incapable of following instructions and performing his duties, and required constant supervision.  The immediate commander further remarked that the applicant resisted all rehabilitative attempts made by his unit and became an administrative burden to the unit.

11.  On 3 January 1979, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.  The intermediate commander further remarked that the applicant had been a problem for the unit since his assignment.  He received several Article 15s and was counseled on multiple occasions by the entire chain of command due to his poor performance on and off duty.  His lack of concern, poor judgment, and failure to respond to unit corrective action, indicated that the applicant did not have the capacity to become an acceptable member of the Army regardless of any further rehabilitative efforts. 

12.  On 18 January 1979, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished an Under Other Than Honorable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 23 January 1979.  The DD Form 214 he was issued confirms he was discharged with an under other than honorable conditions character of service.  This form further confirms he completed a total of 2 years, 1 month, and 7 months of creditable military service and 13 days of lost time due to AWOL.

13.  In his self authored statement, the applicant states that he was initially recommended for elimination with a General Discharge Certificate, but the Staff Judge Advocate ruled that his discharge should be Under Other Than Honorable Conditions.  He completed two thirds of his enlistment commitment and his reentry code does not allow him to reenter the Army.  He is now seeking medical benefits through the Department of Veterans Affairs, due to impaired ability to function in day to day functions of life, without pain, and constant medical visits and the use of equipment for standing and waling.

14.  On 24 January 1982, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

16.  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, 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.

17.  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 applicant contends that his discharge should be upgraded.

2.  The applicant’s military and civilian medical records were thoroughly reviewed and considered.  However, there is no evidence in the available records and the applicant did not provide substantiating evidence that shows his extensive record of misconduct was the result of any medical condition.  Furthermore, there is no evidence that the applicant was undergoing any social, physical, and psychological issues or that he addressed such issues with his chain of command or the support channels available on his installation.  Additionally, there is no evidence that his extensive history of misconduct was the result of such social, physical, and/or psychological issues.

3.  The evidence of record shows that the applicant had a history of misconduct; including multiple instances of Article 15s, multiple instances of AWOL, various confrontations with civil and military authorities, a bar to reenlistment, and an extensive history of negative counseling.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.   The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief. 



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 that 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)                                         AR20080010568



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ABCMR Record of Proceedings (cont)                                         AR20080010568



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