IN THE CASE OF:	  

		BOARD DATE:	  9 December 2008

		DOCKET NUMBER:  AR20080013493 


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 that his general discharge under honorable conditions be upgraded to fully honorable.

2.  The applicant states that he knows he made a lot of mistakes when he was in the Army, but he hopes the Board will upgrade his discharge.  It would help him get a job and better benefits.  He has become a vital member of his community as well as of his church.  He is in the choir, and he loves serving the Lord.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a certification of completion.

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 July 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty 76W (Petroleum Supply Specialist).

3.  On 20 October 1980, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order.

4.  On 15 January 1981, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave from on or about 6 January to on or about 9 January 1981.

5.  On 1 February 1981, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

6.  On 5 May 1981, the applicant accepted NJP under Article 15, UCMJ, for being derelict in his duties in that he negligently left his rifle unsecured.

7.  On 18 June 1981, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

8.  On 24 July 1981, the applicant completed a mental status evaluation and was found to be mentally responsible and mentally capable of understanding and participating in board proceedings.

9.  On 24 July 1981, the applicant completed a separation physical and was found qualified for separation. 

10.  On 9 March 1982, the applicant's commander initiated separation action on him under the provisions of chapter 14, Army Regulation 635-200, for misconduct.

11.  On 9 March 1982, the applicant acknowledged the separation action.  He requested his case be considered by a board of officers, he wanted to make a personal appearance before such a board, and wanted representation by counsel before such a board.  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 understood that if he received a character of service which was less than honorable he could make application to the Army Discharge Review Board or the ABCMR for upgrading.  However, he realized that consideration by either board did not imply that his discharge would be upgraded.  He did not submit statements in his own behalf.

12.  On 9 March 1982, the applicant's commander recommended that he be required to appear before a board of officers.  Discharge was recommended because of excessive incidents of behavioral and attitude problems.  The commander stated that the applicant had been a continuous disciplinary problem since he had been in the service.  He had been counseled on numerous occasions to no avail.  His performance was characterized by intentional shirking of his duties and by behavior rendering him repeatedly subject to punitive action, but his behavior was not due to an incapacity to become a satisfactory Soldier within the meaning of misconduct.  

13.  During the week of 26 through 30 April 1982, the applicant waived his right to a board.

14.  On 13 May 1982, the appropriate authority waived the requirements for counseling and rehabilitation, approved the recommendation for separation, and directed the applicant receive a general discharge.

15.  On 19 May 1982, the applicant was discharged, with a general under honorable conditions discharge, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 14 for misconduct - an established pattern for shirking.  He had completed 1 year, 10 months, and 19 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had no lost time.  

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  At the time, specific categories included a pattern of misconduct (an established pattern for shirking).  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 characterization of service of under other than honorable conditions is normally appropriate.

17.  The applicant did not apply to the Army Discharge Review Board within its 15-year statute of limitations.

18.  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.  



DISCUSSION AND CONCLUSIONS:

1.   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.

2.  The applicant could have been separated with a characterization of service of under other than honorable conditions.  The applicant's good post-service conduct is commendable.  However, considering his record of minor, but frequent, acts of misconduct it appears that the characterization of his service as general under honorable conditions was and still is appropriate.

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.




      _______ XXX_   _______   ___
               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)                                         AR20080013493





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ABCMR Record of Proceedings (cont)                                         AR20080013493



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