IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016650 


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 an honorable or a general discharge. 

2.  The applicant states, in effect, that he was a young man at the time of his military service and did not make the proper choices, but would like to be given another opportunity.  He also believes his discharge is in error because of his age and assignment, and because his discharge occurred toward the end of his enlistment.

3.  The applicant provides a self-authored letter, dated 11 September 2008 and a business card from a service officer from the Disabled American Veterans 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 was born on 14 November 1960. He enlisted in the Regular Army on 28 August 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist). He was then reassigned to Fort Hood, Texas.

3.  On 9 June 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful command from his superior commissioned officer, being derelict in the performance of his duties, and behaving disrespectfully toward his superior commissioned officer.  His punishment consisted of forfeiture of $130.00 and extra duty for 14 days.

4.  On 14 September 1981, 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 $135.00 and extra duty for 14 days.

5.  As a result of a conviction by a summary court-martial, the applicant was sentenced to confinement at hard labor for 30 days.  He was placed in confinement on 28 September 1981, and was subsequently reassigned to the United States Army Retraining Brigade at Fort Riley, Kansas.

6.  On 2 December 1981, the applicant's commanding officer informed him that he was being considered for elimination from the service for misconduct under the provisions of Chapter 14 (Separation for Misconduct), Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel).  He was also advised of his rights.  The applicant acknowledged receipt that same day.

7.  On 8 December 1981, 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 Chapter 14, Army Regulation 635-200 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 and personal appearance before a board of officers, and elected not to submit statements in his own behalf.  He also waived consulting counsel.  Additionally, he 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.   
8.  On 15 December 1981, 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 (PV1)/E-1, he was discharged accordingly on 18 December 1981 after completing only 1 year, 2 months, and 24 days of active duty service.

9.  In a letter, dated 15 March 1984, the Army Discharge Review Board informed the applicant that his petition to upgrade his discharge had been denied.

10.  In his self-authored letter, dated 11 September 2008, the applicant stated that he had several issues going on at the time which involved his family, and that these issues serve as no excuse, but that he reacted hastily.  He also stated that he enjoyed the time he served, and that after 27 years, he has been very active in his children's and family's lives.  He further stated that he has been employed by the same company for over 18 years as a highly respected business man.  Additionally, he stated that he hopes that what he did back then does not have an effect on him now that he is in the overly prime of his life as a single father, grandfather, deacon, and a changed person.

11.  Army Regulation 635-200, in effect at the time set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

12.  Paragraph 3-7a of Army Regulation 635-200 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.  

13.  Paragraph 3-7b of this same regulation 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.
14.  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 should be upgraded to an honorable or a general discharge.

2.  The applicant's contention regarding his post-service conduct was considered. However, good post-service conduct alone is not a basis for upgrading a discharge.

3.  The applicant's contention that his discharge is in error because of his age and/or assignment was also considered.  However, his military records show that he successfully completed basic combat and advanced individual training, and was over 21 years old at the time of his discharge proceedings.  There is also no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, as the applicant did not elaborate on why he believes his discharge is in error because of his assignment, no conclusion can be drawn from his contention that it was a mitigating factor.  

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.  The evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ on two occasions and was convicted by a summary court-martial.  As a result, his subsequent discharge under the provisions of Army Regulation 635-200, Chapter 14 was appropriate.  The applicant also 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.  

6.  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 a 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)                                         AR20080016650



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ABCMR Record of Proceedings (cont)                                         AR20080016650



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