IN THE CASE OF:	  

	BOARD DATE:	  2 December 2008

	DOCKET NUMBER:  AR20080014492 


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, in effect, that his discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states that he served his country and was hurt during the time of his service.  When he dies, he wants the Army to bury him. 

3.  The applicant provides no supporting documentation.

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.  On 10 November 1977, the applicant enlisted in the Regular Army for 
3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 16R (Air Defense Artillery Short Range Gunnery Crewman).
3.  On 13 April 1978, the applicant was assigned to Fort Hood, Texas for duty.

4.  On 22 May 1980, the applicant was discharged for the purpose of immediate reenlistment.  On 23 May 1980, he reenlisted in the Regular Army for another 3 year period of service.

5.  On 4 July 1981, the applicant was promoted to the rank of sergeant, pay grade E-5.

6.  On 30 March 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for disrespectful behavior towards a commissioned officer.  There is a reference to a continuation sheet, but it is not available for review.   The punishment included reduction to pay grade E-4 (suspended) and 30 days restriction.  

7.  On 8 April 1982, the applicant willfully disobeyed a lawful order from a noncommissioned officer (NCO).  On or about 21 April 1982, the applicant was informed that the commander was considering whether he should be offered NJP.  The evidence of record does not contain the disposition of this action. 

8.  On 21 April 1982, the suspended punishment of reduction to pay grade E-4 imposed on 30 March 1982 was vacated.  

9.  On 10 June 1982, the applicant was assigned for duty in the Federal Republic of Germany.

10.  The applicant was absent without leave (AWOL) during the period from 12 to 16 September 1984.  On 23 September 1984, the applicant acknowledged that he had the right to speak with a lawyer and to demand a court-martial, but gave up both rights to accept NJP.  The available records do not contain any documentation of this NJP.

11.  On 6 November 1984, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good. There was no significant mental illness.  The applicant was mentally responsible. 

12.  On 13 November 1984, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, due to a pattern of misconduct.  The commander did not elaborate on any specifics of the applicant’s misconduct.  The available evidence of record indicates that there were fifteen enclosures with the commander’s recommendation.  Four of these enclosures were NJPs, three of which are not available for review. 

13.  On 15 November 1984, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He also waived his right to representation by counsel.  He elected to make a statement in his own behalf, but any such statement is not in the available records.

14.  On 18 December 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

15.  Accordingly, on 20 December 1984, the applicant was discharged under other than honorable conditions.  He had completed 7 years, 1 month and 5 days of creditable active service, and had 5 days of lost time due to AWOL.

16.  On 10 September 1996, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  The ADRB stated in its case review that the applicant had received NJP on 10 September 1981 for failure to go; on 30 March 1982 for disrespect towards a commissioned officer; on 1 April 1982 for disobeying a lawful order from an NCO; and on 
23 September 1984 for assault on an NCO and for AWOL.  

17.  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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, 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.

18.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.


19.  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 available evidence of record indicates that he received four NJPs during a period of 3 years.  Clearly, this established his pattern of misconduct. 

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.

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

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080014492



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