IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009284 


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 general discharge.

2.  The applicant essentially requests help in this matter and contends that he served to the best of what the Army taught him.  He claims he did all that he could do.

3.  The applicant provides no additional evidence 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 23 January 1979 for a period of 3 years and for assignment with the 24th Infantry Division.  He completed initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was then reassigned to the 24th Infantry Division at Fort Stewart, Georgia, for what would be his first and only permanent duty station.

3.  On 10 July 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 12 June 1979.  His punishment consisted of 7 days of extra duty and 7 days of restriction.

4.  On 24 October 1979, the applicant was convicted by a special court-martial for willfully disobeying a lawful order from his superior noncommissioned officer (NCO) on or about 22 July 1979 and for assaulting the same NCO on that date by moving slowly towards him in a threatening manner with a knife in his hand.  He was sentenced to forfeiture of $200.00 pay per month for 6 months, extra duty for 45 days, and restriction for 45 days.  The applicant's sentence was approved on 7 December 1979 and ordered to be duly executed.

5.  On 19 December 1979, the applicant accepted NJP under Article 15 of the UCMJ for being derelict in his duties on or about 20 November 1979 by negligently failing to keep secure all parts of his assigned M16A1 rifle thereby causing his weapon to be inoperable and for failing to go at the time prescribed to his appointed place of duty on two occasions.  His punishment consisted of a reduction in rank to private/E-1 and 14 days of extra duty, both of which were suspended for 60 days.

6.  On 9 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 on or about 8 January 1980.  His punishment consisted of a reduction in rank to private/E-1 and 7 days of correctional custody.  The applicant appealed this punishment and later that date his appeal was denied and the portion of his punishment relating to 7 days of correctional custody was made effective 10 January 1980.

7.  On 10 April 1980, the applicant accepted NJP under Article 15 of the UCMJ for being disorderly in camp on or about 17 March 1980.  His punishment consisted of forfeiture of $50.00 and 14 days of extra duty.

8.  On 29 April 1980, the applicant's commanding officer notified him that he was recommending that he be discharged under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for frequent incidents of a discreditable nature with civil or military authorities and an established pattern of shirking.  He was also advised of his rights.  The applicant acknowledged receipt on that date as well.

9.  On 1 May 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 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 before a board of officers and waived counsel.  He also elected not to submit statements in his own behalf.  Additionally, he 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 could expect to encounter substantial prejudice in civilian life.

10.  On 2 May 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 on or about 28 April 1980.  His punishment consisted of forfeiture of $100.00, extra duty for 14 days, and restriction for 14 days.  The applicant appealed this punishment, but his appeal was denied on 6 May 1980.

11.  On 7 May 1980, a mental status evaluation was conducted on the applicant and he was cleared psychiatrically for any administrative action deemed appropriate by his command.

12.  On 15 June 1980, the proper separation authority approved the applicant's discharge under the provisions of paragraphs 14-33b(1) and 14-33b(2) 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 17 June 1980 after completing only 1 year, 4 months, and 25 days of his 3-year enlistment.

13.  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.

14.  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 and an established pattern of shirking.  A discharge under other than honorable conditions was normally considered appropriate.

15.  Army Regulation 635-200 provides, in pertinent part, 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.

16.  Army Regulation 635-200 provides, in pertinent part, 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 his discharge under other than honorable conditions should be upgraded to an honorable or general discharge.

2.  The fact that the applicant is essentially requesting that his discharge be upgraded so that he can potentially receive veteran's benefits or better employment opportunities was noted.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits or improving his or her employment prospects.

3.  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.

4.  The evidence of record shows that the applicant was convicted by a special court-martial and accepted NJP under Article 15 of the UCMJ on five 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 his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

5.  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.



      _____________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)                                         AR20090009284



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ABCMR Record of Proceedings (cont)                                         AR20090009284



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