IN THE CASE OF:	  

		BOARD DATE:	        13 JANUARY 2009

		DOCKET NUMBER:  AR20080016219 


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 a general discharge. 

2.  The applicant essentially states that his discharge should be upgraded because he requested to be released from active duty, and that his request was granted.  He also states, in effect, that his company commander actually tried to convince him to stay in the Army, and therefore feels that his discharge should have been a general discharge under honorable conditions.  He further states that recent medical evidence has shown that he has been diagnosed with bipolar disorder, and that he had no knowledge of his depressive status.

3.  The applicant provides a seven-page Social Security Administration decision on his request for social security benefits in support of this 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's military records show that he enlisted in the Regular Army on 16 January 1979.  He completed basic and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was then reassigned to Fort Ord, California for what would be his only permanent duty assignment.

3.  The applicant's military records also revealed an extensive history of counseling statements, which essentially show that the applicant committed offenses such as breaking restriction, using abusive and disrespectful language toward noncommissioned officers (NCOs), failing to follow orders, leaving his appointed place of duty, and assaulting an NCO.

4.  On 2 November 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on two occasions, wrongfully possessing one ounce, more or less, of marijuana, and failing to obey a lawful order.  His punishment consisted of forfeiture of $224.00 pay per month for 
2 months, restriction for 30 days, and extra duty for 45 days.

5.  On 6 December 1979, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $104.00, restriction for 14 days, and extra duty for 14 days.

6.  On 4 January 1980, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $104.00, which was suspended for 
6 months, 14 days of restriction, and 14 days of extra duty.

7.  On 11 January 1980, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully having in his possession one-fourth teaspoon, more or less, of marijuana.  His punishment consisted of forfeiture of $104.00, which was suspended until 11 April 1980 and 14 days of extra duty.

8.  On 15 January 1980, a Bar to Reenlistment Certificate was initiated on the applicant due to his record of NJP.  His commanding officer also stated that the applicant had continually shown disrespect to superiors from his platoon sergeant all the way to officers, and had disobeyed orders from NCOs and commissioned officers.  He further stated that the applicant also wrongfully possessed marijuana, broke restriction, and had failed to report for formations.  Additionally, he stated that the applicant also assaulted an NCO.  The applicant acknowledged that he had been counseled and advised of the basis for his bar to reenlistment, and did not desire to submit a statement in his own behalf.  On 
22 January 1980, the applicant's bar to reenlistment was approved.

9.  In  February 1980, the applicant's commanding officer advised him that he was being considered for elimination from the service for misconduct under the provisions of paragraph 14-33 (Misconduct – frequent incidents of a discreditable nature with civil or military authorities), Army Regulation 635-200 (Enlisted Personnel).  He was also advised of his rights.  The applicant acknowledged receipt on 7 February 1980.

10.  On 13 February 1980, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of Army Regulation 635-200, Chapter 14 (Separation for Misconduct) and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant waived consideration of his case before a board of officers, and waived personal appearance before a board of officers.  Although he indicated that he elected to submit a statement in his own behalf, no statement dated on or after February 1980 was present with his separation packet.  He also requested consulting counsel.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.   His commander also noted that the applicant has been nothing but a discipline problem since he had been with his unit.  He also stated that the applicant had been arrested by civil authorities, broke restriction, had been caught with marijuana, and had also been disrespectful on many occasions to officers and NCOs.

11.  In an undated statement, the applicant's commanding officer stated that the applicant was afforded a chance to receive a separation physical examination and a mental hygiene appointment, but that the applicant did not want either.

12.  On 27 March 1980, a mental status evaluation was conducted on the applicant, and he was essentially psychiatrically cleared for any administrative action deemed appropriate by his command.

13.  On 31 March 1980, the proper separation authority approved the applicant's discharge under the provisions of Chapter 14, Army Regulation 635-200, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Already serving in the rank and pay grade of private/E-1, he was discharged accordingly on 9 April 1980 after completing only 1 year and 2 months of active duty service.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  The applicant provided a seven-page Social Security Administration decision on his request for social security benefits, which essentially shows that in 2004, the Social Security Administration granted him disability benefits effective 
1 October 2002 due to bilateral arm pain, low back pain, right hip pain, and major depression.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14, paragraph 14-33b, provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally considered appropriate.  

17.  Army Regulation 635-200, paragraph 3-7, 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.  

18.  Army Regulation 635-200, paragraph 3-7, 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.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant's contention that his discharge should be upgraded because he requested to be released from active duty was considered, but not found to have any merit.  The applicant is not entitled to an upgrade of his discharge simply because he wanted out of the Army.  Additionally, while the applicant may have wanted to be discharged, his discharge proceedings were initiated by his chain of command, not him.

3.  The applicant's contention that his company commander actually tried to convince him to stay in the Army was also considered, but not found to have any merit.  The applicant provided no evidence to support his contention, and in his recommendation for the applicant's discharge, his commanding officer specifically stated that the applicant has been nothing but a discipline problem since he had been with his unit.  He also stated that the applicant had been arrested by civil authorities, broke restriction, had been caught with marijuana, and had also been disrespectful on many occasions to officers and NCOs.

4.  The fact that the applicant was granted social security benefits in 2004, retroactive to 1 October 2002, was noted, as was the fact that one of the factors which led to granting him benefits was major depression.  However, this diagnosis was made well over 20 years after the applicant's discharge, and at the time, the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command.

5.  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.

6.  The evidence of record shows that the applicant was extensively counseled for offenses such as breaking restriction, using abusive and disrespectful language toward NCOs, failing to follow orders, leaving his appointed place of duty, and assaulting an NCO.  It also shows that the applicant accepted NJP under Article 15 of the UCMJ on four occasions for multiple offenses of the UCMJ.  As a result, his subsequent discharge under the provisions of Army Regulation 635-200, Chapter 14 was appropriate.  The applicant failed to provide any evidence which proves that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  

7.  Based on his record of indiscipline during such a brief period of military service, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general 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)                                         AR20080016219



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ABCMR Record of Proceedings (cont)                                         AR20080016219



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