IN THE CASE OF:	

		BOARD DATE:	25 August 2009  

		DOCKET NUMBER:  AR20090006327 


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

2.  The applicant states that he is unemployed and does not have any health insurance.  He maintains that the upgrade of his discharge is for health benefits.

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.  The applicant’s record shows he enlisted in the Regular Army (RA) and entered active duty on 19 April 1977.  

3.  On 27 October 1977, 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 reduction to the rank/grade of private first class (PFC)/E-3, suspended until 27 April 1978; forfeiture of $50.00 pay; and 7 days of extra duty.

4.  On 29 November 1977, nonjudicial punishment was imposed against the applicant for two incidents of being absent without leave (AWOL) for the period
4 November 1977 to 7 November 1977 and from 15 November 1977 to 
17 November 1977.  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2 and 45 days of extra duty.

5.  On 3 January 1968, the applicant was convicted by a special court-martial for failing to go at the time prescribed to his appointed place of duty.  No punishment was imposed and the sentence was adjudged on 24 February 1978.

6.  On 29 June 1978, 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 14 days of extra duty.

7.  On 4 August 1978, the applicant was reported as AWOL.  He was dropped from the rolls (DFR) of the Army on 2 September 1978.  On 6 January 1979, the applicant was apprehended by civilian authorities and he was returned to military control at Fort Ord, CA.  On 18 January 1979, the applicant again departed AWOL and he was placed in a DFR status on the same date.  On 25 July 1980, the applicant was apprehended by civilian authorities and he was again returned to military control at Fort Ord.

8.  On 1 September 1982, the commander initiated action to separate the applicant for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  He cited the applicant being AWOL for over a year as justification for the discharge.  The applicant acknowledged in writing that he was aware of the proposed separation action.

9.  On 3 September 1982, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers and to personal appearance before a board of officers.  He also elected not to submit statements in his behalf.

10.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general, under honorable conditions discharge is issued.  He further acknowledged that as a 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 may encounter substantial prejudice in civilian life.

11.  On 3 September 1982, the applicant underwent a mental and physical examination that determined that he was qualified for separation. 

12.  On 25 September 1982, the acting commander of Headquarters, Processing Company, U.S. Army Personnel Control Facility, Fort Ord, recommended that the applicant be discharge under the provisions of chapter 14, Army Regulation
635-200.  He stated that trial by court-martial for the applicant's AWOL was deemed inadvisable in view of his negative attitude toward the Army and his poor motivation for further military duty.

13.  On 1 October 1982, the intermediate commanders recommended approval of the discharge action.

14.  On 5 October 1982, the major general in command of Headquarters, 7th Infantry Division, Fort Ord, approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant be reduced to the lowest enlisted grade.

15.  The applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 25 October 1982 he was discharged with a characterization of service of under other than honorable conditions.  This form also shows that he had five periods of lost time: 
4 November 1977 - 6 November 1977, 15 November 1977 - 16 November 1977, 4 August 1978 - 5 January 1979, 18 January 1979 - 24 July 1980, and 31 July 1980 - 26 August 1982.

16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, 
convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-39 states that an under other than honorable conditions discharge is normally appropriate for a member who is discharged for acts and patterns of misconduct.

18.  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.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

2.  The applicant contends that his discharge upgrade is for the purpose of securing health benefits.  There are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  The applicant has failed to provide such evidence.

3.  The applicant’s record shows he received nonjudicial punishment, a special court-martial conviction, and almost 4 years of lost time.  Based on this 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 renders his service unsatisfactory.  Therefore, he is not entitled to a general, under honorable conditions 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)                                         AR20090006327



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ABCMR Record of Proceedings (cont)                                         AR20090006327



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