IN THE CASE OF:	

		BOARD DATE:	  8 January 2010

		DOCKET NUMBER:  AR20090013013 


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 discharge be upgraded to honorable.

2.  The applicant states that his less than honorable discharge should have been upgraded to honorable after 6 months.  He states that he was offered an early release and an honorable discharge and was told that the discharge would automatically be upgraded to honorable in 6 months, but they failed to do so and now he can't get medical attention due to this.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a typed, self-authored letter.

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 in pay grade E-1 on 24 January 1974 for a period of 3 years.  He was discharged on 25 October 1976 and reenlisted the next day for a period of 6 years.  His military occupational specialty code was 31M (Multi Channel Communications Operator).

3.  On 14 March 1978, the applicant was counseled for indebtedness.

4.  On 13 April 1978, the applicant was counseled for fishing in an off limits area without a fishing license.

5.  On 27 April 1978, the applicant was counseled for assault on his wife by slapping her twice in the facial area and shoving her against a wall.  He was referred to mental hygiene for an evaluation.

6.  Throughout the month of June 1978, the applicant was counseled numerous times for being absent without leave (AWOL), non-support of dependents, dereliction of duty, uniform violation, driving violation, and wrongful appropriation of private property.

7.  On 25 July 1978, the applicant was again counseled for indebtedness for an unpaid loan.

8.  On 28 July 1978, the applicant received an Article 15 for failure to repair.  His imposed punishment was a reduction to private first class, suspended for 90 days, and 14 days of extra duty.  The Article 15 was later set aside on appeal.

9.  On 9 August 1978, the applicant was barred from reenlistment.  The primary reasons were for indebtedness and misconduct.  Both the battalion commander and brigade commander recommended approval.

10.  During the period 23 October 1978 through 30 October 1978, the applicant was again counseled numerous times for disorderly conduct and impersonating a noncommissioned officer (NCO), for failure to repair (late for formation), assault on an NCO, and a dishonored check.

10.  During the period 1 November 1978 through 15 December 1978, the applicant was counseled on different occasions for failure to clear government quarters, for being AWOL, for failure to pay rent, for indebtedness, and for breach of peace. 

11.  On 29 December 1978, the applicant's unit commander notified him that he was initiating action which may result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.  The applicant was also advised that he was required to appear before a board of officers convened under the provisions of chapter 14 for the purpose of determining whether he should be discharged before the expiration of his term of service.

12.  On that same day, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he elected to appear before a board of officers with military counsel.  The applicant also acknowledged his understanding that if he were issued a discharge under other than honorable conditions, he may 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.

13.  On 22 February 1979, a board of officers was appointed to determine whether the applicant should be discharged for misconduct by reason of frequent incidents of a discreditable nature with military authorities.  That same day the applicant received notification to appear before a board of officers.

14.  In a written statement by the applicant, he requested that he be issued an honorable or at least a general discharge under honorable conditions if the recommendation for elimination was granted.  He also expressed his desire to remain on active duty and at least fulfill his remaining obligation to its full term.  He requested that special consideration be given to special occurrences that impacted his career.  He discussed his marital problems and how he was falsely accused by his wife of abuse and was ordered to stay away from his quarters.  He mentioned that when he went back to his quarters he found another man's clothes in the closet and his reaction to that incident.  He touched on the fact that he had reported a violation of the Uniform Code of Military Justice to his battalion commander against his platoon sergeant, first sergeant, and company commander for wrongful appropriation and that his platoon sergeant had been relieved.  He was reassigned to another unit and felt that he was being scrutinized by the new commander because the old commander had placed a call to him and told him to watch out for the applicant.  He felt he had been silently punished for his actions.  The applicant also waived his right to a review by a board of officers because he believed that many bad things would have been said about him and he didn't think he could overcome them.  He stated that he was not bitter at the Army and will long remember the good times.

15.  On 20 March 1979, the separation authority approved the discharge and directed that the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, and that he receive an under other than honorable conditions discharge.

16.  On 12 April 1979, the applicant was discharged after completing a total of 
5 years, 2 months, and 13 days of creditable service with 6 days of lost time.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct with a discharge under other than honorable conditions.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the 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, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.

18.  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.

19.  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.

20.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was carefully considered; however, there is no evidence and the applicant has not provided any evidence that shows that the punishment he received was inequitable or unjust.
2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 on two separate occasions and numerous counseling.  The commander's efforts to rehabilitate him were ineffective.  As a result, his service record does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The extent of the applicant's misconduct also renders his service unsatisfactory.  Therefore, in view of the foregoing, he is not entitled to either a general or honorable discharge.

4.  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.

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)                                         AR20090013013





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ABCMR Record of Proceedings (cont)                                         AR20090013013



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