IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090007558 


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 under other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states he made many mistakes; however, he suffers daily with severe foot pain related to his stay at Fort Carson, CO and he is unable to work due to the pain.  He also states that he would like to receive medical attention for his feet and financial help for his family and himself. 

3.  The applicant provides three letters of support and a record of a phone call 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 he enlisted in the Regular Army on 15 November 1978 with 2 years and 10 months of prior inactive service and 4 months and 6 days of prior active service.  He was awarded the military occupational specialty of indirect fire crewman.  His records do not show any significant acts of achievement or valor during his military service.

3.  Records show the applicant received a Letter of Reprimand on 1 October 1981 for overall unsatisfactory performance.

4.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on six occasions during the period 1 August 1980 to 28 October 1981 for various reasons to include:  assault on 13 July 1979, failing to go to his appointed place of duty at the time prescribed and dereliction in the performance of his duties on 27 July 1980, failing to go to his appointed place of duty at the time prescribed on 2 February 1981, failing to obey a lawful order on 6 March and on 9 March 1981, for being absent without leave (AWOL) from 1 July until 8 July 1981, and or failing to go to his appointed place of duty at the time prescribed on 20 October 1981.

5.  Records show the applicant was AWOL during the period 2 March until 7 March 1982.

6.  On 9 March 1982, the applicant acknowledged his commander's intent to initiate action to effect his discharge for misconduct.

7.  On 10 March 1982, the applicant acknowledged he had been counseled and advised of the basis for the contemplated separation action for misconduct under the provisions of Chapter 14, Army Regulation 635-200 and its effects and of the rights available to him.  He further acknowledged that as a result of the issuance of a discharge under other than honorable conditions he would be ineligible for many or all benefits as a veteran under both Federal and state law and that he may expect to encounter substantial prejudice in civilian life.

8.  On 22 June 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant shows he completed a total of 3 years, 11 months, and 11 days of active military service; 2 years and 10 months of inactive service; and he had 13 days of lost time due to being AWOL.


9.  On 23 June 1988, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge to a general discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of that regulation establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 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.

12.  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's record shows he was issued a Letter of Reprimand for a consistent pattern of unsatisfactory performance.  He accepted NJP on six occasions for assault, being AWOL, failing to obey a lawful order, failing to go at the prescribed time to his appointed place of duty, and dereliction in the performance of his duties.  The applicant's records also show that he had 13 days of lost time due to being AWOL.  Such conduct would certainly warrant an administrative separation from the Army.

2.  Documents contained in the applicant's records confirm that his rights were protected throughout the discharge process.

3.  Based on the applicant's record of indiscipline, his 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, he is not entitled to either a general or an honorable discharge.

4.  It is commendable that the applicant wants to make a new life for his family.  However, the applicant’s character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the actions that he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090007558



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ABCMR Record of Proceedings (cont)                                         AR20090007558



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