IN THE CASE OF:	  

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090010061 


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 upgrade of his under other than honorable conditions discharge to a general, under honorable conditions or fully honorable discharge.

2.  The applicant states that his service was honorable while he was serving his country in Europe.  He contends that there were instances near the end of his tour that caused his superior officers and noncommissioned officers to regard him as a troublemaker and a shirker.  Although he had signed up for a three-year tour, it was reduced to eighteen months when Europe was the chosen duty station.  According to his records, his tour of duty should have been over two and half months prior to his discharge.  He is currently a new Christian, a father of a four-year-old, and he plans to marry his child’s mother.  He has realized the error of his youth and the tremendous opportunity he had while serving in the Army.

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 enlisted in the Regular Army (RA) on 13 July 1979 for a period of three years.  The highest rank/grade he attained during his tenure of service was private first class (PFC)/E-3.

3.  He served in Germany from October 1979 to April 1981 with Headquarters and Headquarters Company, 1st Battalion, 36th Infantry.

4.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reduced from PFC to private (PV2)/
E-2 on 30 August 1980.  There is no record of nonjudicial punishment which indicates the purpose for this reduction.

5.  The applicant’s service personnel record contains two U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Reports of Investigation which indicate he was involved in an altercation in a bar and aggravated assault on a female German national.

6.  The applicant’s complete discharge packet is not available for review.  On
12 February 1981, the unit commander notified the applicant of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), by reason of misconduct-frequent involvement in incidents of a discreditable nature with civil or military authorities.  The applicant acknowledged notification of the separation action and acknowledged that he had been counseled regarding the type of discharge he would receive and the possible effects on him.  His elections of his rights are not available for review.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was discharged on 7 April 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  He was issued a UOTHC discharge.  He had 1 year, 8 months, and 25 days of creditable active service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.


9.  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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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.  In the absence of evidence to the contrary, the applicant’s discharge processing is presumed to have been administratively correct and in conformance with applicable regulations.

2.  The applicant contends that his service was honorable while he was serving his country in Europe.  However, his service record shows he was reduced to PV2 and he was involved in an alteration at a bar and aggravated assault on a female German national while he was assigned in Germany.

3.  Although the applicant feels that he should have received a general, under honorable conditions or an honorable discharge, it appears the chain of command determined that his overall military service did not meet the standards for either as defined by Army Regulation 635-200.  It appears his service was appropriately characterized as under other than honorable conditions.
4.  There is no evidence of record and none provided by the applicant which indicates the actions taken in his case were in error or unjust; therefore, 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)                                         AR20090010061



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ABCMR Record of Proceedings (cont)                                         AR20090010061



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