IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080015238 


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 discharge.

2.  The applicant states at the time of his discharge, the Army sought to reassign him to another duty station; but he wanted to get out of the Army for personal reasons and because he was having seizures.  He adds that neither his seizures nor the replacement of the tip of his middle finger on his right hand were introduced as evidence in his discharge proceedings.  He continues to take medications for his seizures today.  He also states that he was not provided with counseling and was unable to see a chaplain.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 23 December 1976; a copy of his Standard Form 600 (Chronological Record of Medical Care), dated 3 June 1977, and a copy of a certificate of achievement, dated 10 March 1976, in support of his request.

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 5 September 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).  The highest rank/grade he attained during his military service was private first class (PFC)/E-1.

3.  The applicant’s records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 8 July 1975, for committing an assault against another Soldier by striking him with a steel pole, on or about 7 July 1974.  His punishment consisted of forfeiture of $89.00 pay for one month, 14 days of restriction, and reduction to private (PV2) (suspended for 90 days).  On 10 July 1972, the applicant appealed his punishment and on 17 July 1972, the next superior authority approved a partial grant in that he suspended that portion of the punishment of reduction to PV2/E-2 for 90 days.  However, on 26 August 1972, the suspension of reduction to PV2/E-2 was vacated and the unexecuted portion of the punishment was ordered executed; 

	b.  on 27 August 1975, for disobeying a lawful order, on or about 22 August 1975.  His punishment consisted of 14 days of extra duty, forfeiture of $75.00 pay for one month, and reduction to private (PVT)/E-1; and

	c.  on 17 May 1976, for absenting himself from his appointed place of duty, on or about 22 April 1976.  His punishment consisted of 7 days of extra duty. 

4.  On 2 September 1976, the applicant pled guilty at a Summary Court-Martial to three specifications of being absent without leave (AWOL) during the periods from on or about 9 August 1976 through on or about 13 August 1976, on or about 13 August 1976 through on or about 18 August 1976, and on or about 18 August 1976 through on or about 30 August 1976.  The Court sentenced him to reduction to PVT/E-1, forfeiture of $240.00 pay for one month, and performance of hard labor for 45 days without confinement.  The sentence was adjudged and was approved on 2 September 1976.

5.  On 29 October 1976, the applicant pled not guilty at a Special Court-Martial to three specifications of being AWOL during the periods on or about 1 September 1976 through on or about 6 September 1976, on or about 6 September 1976 through on or about 15 September 1976, and on or about 4 October 1976 through on or about 18 October 1976, and two specifications of disobeying a lawful order on or about 15 September 1976 and on or about 24 September 1976.  The Court found him guilty of all charges and specifications, except the one specification of disobeying a lawful order on or about 24 September 1976, and sentenced him to confinement for 4 months and forfeiture of $249.00 pay per month for 4 months.  The sentence was adjudged on 29 October 1976 and was approved on 20 December 1976.

6.  On 20 December 1976, the applicant’s immediate commander notified the applicant of his intent to initiate elimination action against him in accordance with chapter 13 (Separation for Unfitness or Unsuitability) of Army Regulation (AR) 635-200 (Personnel Separations) for misconduct, which falls under the category of unfitness.

7.  On 20 December 1976, the applicant consulted with counsel and acknowledged notification of his pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated that he understood that he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further indicated that he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  On 20 December 1976, the applicant’s immediate commander initiated action to eliminate the applicant from the service, in accordance with AR 635-200, for misconduct.  The immediate commander cited the applicant’s frequent incidents of a discreditable nature and that the applicant had demonstrated little desire to return to duty and that he received considerable counseling by his chain of command and members of other professional staff agencies, but he failed to react constructively to the rehabilitative program.

9.  On 20 December 1976, the applicant’s intermediate commander recommended approval of the applicant’s discharge for misconduct and waiver of any further rehabilitation. 

10.  On 22 December 1976, the separation authority waived the requirement for a rehabilitative transfer and approved the applicant's discharge for misconduct under the provisions of AR 635-200 and directed that he be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 23 December 1976.  The DD Form 214 he was issued at the time confirms he was discharged with a character of service of under other than honorable conditions.  This form further shows he completed 2 years and 5 days of creditable active military service and had 104 days of lost time.

11.  On 1 February 1985, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

12.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5 of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  AR 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.  .

14.  AR 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 contention that his discharge should be upgraded and the evidence he submitted were carefully considered; however, there is insufficient evidence to grant the applicant the requested relief.  

2.  There is no evidence in the applicant's record that his seizures or personal problems contributed to his repeated pattern of misconduct and/or indiscipline.  The applicant was provided with multiple counseling by his chain of command as well as specialists at his installation; yet, it was determined that any rehabilitative transfer would not have yielded any positive results.

3.  The applicant's record reveals an extensive history of misconduct and/or indiscipline to include three instances of nonjudicial punishment, two instances of courts-martial, and multiple instances of AWOL.  Accordingly, he was recommended for separation by his chain of command and his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

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)                                         AR20080015238





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ABCMR Record of Proceedings (cont)                                         AR20080015238



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