IN THE CASE OF:	 

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080018193 


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.  He also requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 November 1981 be corrected to show he earned his GED (General Education Development).

2.  The applicant states he was incarcerated for assault and he went to retraining.  He states he received his GED while assigned to the retraining brigade at Fort Riley, KS.  He states he was told that when he completed training he would receive a general discharge under honorable conditions.

3.  The applicant provides no additional documents 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.  Item 16 (High School Graduate or Equivalent) of the applicant's DD Form 214 contains an "x" in the Yes block.  The GED is considered equivalent to a high school graduate in this instance.  Therefore, the applicant's completion of his GED is already indicated on his DD Form 214.  This issue will not be discussed further in these Proceedings.

3.  The applicant's military personnel records show he enlisted in the Regular Army on 24 May 1979 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 43M (Fabric Repairman).  On 3 January 1980, the applicant was assigned to the 190th Maintenance Company at Ft. Hood, TX.

4.  On 9 July 1981, the applicant pled not guilty but was found guilty at a special court-martial of striking a female private first class (PFC) with his hand, of brandishing toward a female PFC a dangerous weapon likely to produce grievous bodily harm (a knife), and of wrongfully introducing an indeterminate amount of marijuana into a military installation.  He pled guilty and was found guilty of failure to obey a lawful order from his commander by entering the room of a female Soldier and wrongfully having in his possession an indeterminate amount of marijuana.  His sentence consisted of 5 months confinement, forfeiture of $150 pay per month for 5 months, and reduction to the lowest enlisted grade, E-1.  The sentence was approved on 18 August 1981.

5.  On 27 October 1981, the applicant's commander notified him of "pending discharge proceedings as misconduct."  The commander advised the applicant of his right to consult with a lawyer, to present his case before a board of officers, to submit statements in his own behalf, and to be represented at a hearing by counsel.   The commander further advised the applicant that he may waive any of these rights in writing and he could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  

6.  The applicant acknowledged that he understood the commander's explanation of the reason why he was being recommended for discharge and he understood his rights and the procedures involved.

7.  On 28 October 1981, the applicant's commander recommended him for discharge due to a frequent incidents of a discreditable nature with civil or military authorities.  


8.  The applicant's commander stated the applicant was sent to the retraining brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation.  The commander stated the applicant had received counseling by members of the leadership team and members of the professional staff agencies, but his failure to react constructively to the rehabilitation program are indicative that he should not be retained in the service.  The commander stated the applicant had received considerable counseling since his arrival at the brigade by the social workers, leadership team, and unit cadre.  However, he had not responded favorably to this counseling nor from duties given him.  The commander stated the applicant did not meet the criteria for further rehabilitation attempts.  

9.  The applicant's commander recommended that the requirements for further counseling and rehabilitation be waived.

10.  On 4 November 1981, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  

11.  The applicant also acknowledged that, as the result of issuance of an discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

12.  On 16 November 1981, the appropriate authority approved the recommendation for discharge due to frequent involvement of a discreditable nature with civil and military authorities, waived the requirement for rehabilitative transfer, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 19 November 1981, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 
3 months, and 14 days active service that was characterized as under other than honorable conditions. He had 61 days of time lost.  

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.
15.  Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Included in the categories for discharge is frequent involvement in incidents of a discreditable nature with civil or military authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

16.  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 applicant contends that he was told when he finished training he would receive a general discharge under honorable conditions.  However, the applicant did not submit any evidence to support his contention.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  The ABCMR does not upgrade discharges based solely on the passage of time

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 that requirement.

5.  In view of the above, there is insufficient basis to upgrade the applicant's 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.




      _______ _   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)                                         AR20080018193





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ABCMR Record of Proceedings (cont)                                         AR20080018193



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