IN THE CASE OF:	  

		BOARD DATE:	        12 November 2008

		DOCKET NUMBER:  AR20080014582 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states, in effect, that he completed six and one half years, that there was no court-martial to warrant this type of discharge, and that he needs his Department of Veterans Affairs (DVA) benefits. 

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 23 August 1978 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).  On 26 March 1981, he was honorably discharged for immediate reenlistment.  He reenlisted on 27 March 1981 for a period of 4 years.

3.  On 5 May 1981, nonjudicial punishment was imposed against the applicant for violating lawful general regulations (operating an unregistered and uninsured vehicle and operating a vehicle without a valid driver's license) and wrongfully appropriating government license plates.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended).    

4.  On 23 October 1981, nonjudicial punishment was imposed against the applicant for using disrespectful language and communicating a threat to injure.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.    

5.  On 27 January 1982, a Bar to Reenlistment Certificate was imposed against the applicant.

6.  On 3 June 1983, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.     

7.  On 14 February 1984, nonjudicial punishment was imposed against the applicant for being AWOL for 17 hours and 30 minutes.  His punishment consisted of a reduction to private (PV1)/E-1, restriction, and extra duty.    

8.  On 3 April 1984, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

9.  On 11 April 1984, 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 conduct prejudicial to good order and discipline in the unit; and violation of accepted standards of personal conduct in the Uniform Code of Military Justice, Army Regulations, and time-honored customs and traditions of the Army.

10.  On 23 February 1984, 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 in his own behalf.  

11.  On 18 April 1984, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

12.  Accordingly, the applicant was discharged on 26 April 1984 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 5 years, 8 months, and 4 days of creditable active service.     

13.  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.

14.  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.

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.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

2.  The applicant’s record of service during his last enlistment included five nonjudicial punishments and a bar to reenlistment.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  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; however, he failed to do so.  

4.  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

___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)                                         AR20080014582



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ABCMR Record of Proceedings (cont)                                         AR20080014582



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