IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090011492 


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 an upgrade of his discharge.

2.  The applicant states that he was young and did not have any sense then; but, he is older and better now.  He has learned some sense since his discharge and would now like to go to school and is in need of dental care.  He had originally intended to complete 20 years of military service and wishes he had the chance to do it all over again.  He would even go to Iraq.  He regrets what happened in Germany.  He was jumped by two guys and was simply defending himself.  He really liked Europe. 

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 28 September 1978 and 19 April 1982, in support of his request.

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 was born on 15 March 1957 and enlisted in the Regular Army (RA) for a period of 3 years at the age of 18 on 25 September 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63F (Recovery Specialist).  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 28 September 1978 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation.

3.  After a break in service, the applicant enlisted in the RA for a period of 4 years at the age of 22 on 11 July 1979.  He was subsequently trained in and was awarded MOS 64C (Motor Transport Operator) and was assigned to the 79th Engineer Battalion, Germany.

4.  The applicant’s record also shows he was awarded the Expert Marksmanship Qualification Badge with Rifle, Grenade, and Pistol Bars.

5.  On 2 July 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 2 June 1981 through on or about 3 June 1981.  His punishment consisted of a reduction to private first class/E-3 (suspended until 6 October 1981), a forfeiture of $150.00 pay (suspended until 6 August 1981), 7 days of restriction, and 7 days of extra duty.

6.  On 16 February 1982, the applicant pled guilty at a Special Court-Martial to one specification of violating a general order by wrongfully having in his possession a switchblade knife on or about 24 October 1981; one specification of wrongfully possessing some amount of marijuana on or about 9 December 1981, and one specification of wrongfully possessing hashish on or about 16 November 1981.  He also pled not guilty to one specification of committing an assault upon another Soldier by cutting him on the face with a dangerous weapon on or about 24 October 1981.  The Court found him guilty of all charges and specifications and sentenced him to a reduction to private (PVT)/E-1, a forfeiture of $367.00 pay per month for 6 months, and confinement at hard labor for 6 months.  The sentence was adjudged on 16 February 1982.  

7.  On 9 March 1982, the convening authority approved so much of the sentence as provided for confinement at hard labor for 60 days, forfeiture of $367.00 pay per month for 2 months, and reduction to PVT/E-1. 

8.  On 31 March 1982, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana on or about 26 March 1982.  His punishment consisted of 14 days of extra duty, 14 days of restriction, and a forfeiture of $100.00 pay

9.  On 5 April 1982, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct. 

10.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, but elected to submit a statement on his own behalf.  In his statement, he stated that he had been in the Army for 7 years and did not plan on making the Army a career.  He added that he had no intention in staying in the Army and appealed to the separation authority to grant him a favorable discharge.

11.  The applicant further indicated that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

12.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct because of misconduct- frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant's actions precluded rehabilitation and that the applicant had received considerable counseling since his arrival to the unit but did not respond favorably. 

13.  On 7 April 1982, the applicant's intermediate commander reviewed the recommended separation action and recommended approval of the applicant's discharge.

14.  On 14 April 1982, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 19 April 1982.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with a character of service of under other than honorable conditions.  This form further confirms that the applicant completed a total of 5 years, 8 months, and 7 days of creditable active military service and had 35 days of lost time.

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

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 was 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 was merited by the Soldier's overall record.

17.  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.

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.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant was 22 years of age at the time he enlisted the second time in July 1979 and 25 years of age at the time he committed his misconduct.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

3.  The applicant's record of service shows a history of misconduct that included one instance of AWOL, two instances of NJP, one court-martial, and a period of confinement.  He was counseled countless times regarding his infractions but failed to respond to counseling.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant's repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

5.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs and/or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20090011492



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ABCMR Record of Proceedings (cont)                                         AR20090011492



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