IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090013198 


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 under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he requested his discharge through the "chaplain."  He was not discharged for misconduct as his DD Form 214 (Certificate of Release or Discharge from Active Duty) suggests.

3.  The applicant provides, in support of his application, a copy of his DD Form 214.

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 on 18 April 1978 and completed training in military occupational specialty 71L (Administrative Specialist).  

3.  The applicant's record reflects disciplinary actions as follows:

	a.  On 8 February 1980, nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice was imposed against the applicant for failure to obey a lawful order given by a noncommissioned officer.  His punishment consisted of reduction to pay grade E-2 (suspended for 90 days).

	b.  On 12 November 1980, NJP was imposed against the applicant for two specifications of failure to obey a lawful order of a noncommissioned officer.  His punishment consisted of a reduction to pay grade E-3, a forfeiture of $142.00 pay (suspended for 90 days), and extra duty and restriction for 7 days.  On
9 February 1981, the suspended portion of his punishment was vacated for subsequent misconduct.

	c.  In September 1981, NJP was imposed against him, however, the NJP Record of Proceedings is illegible, therefore, his specific offenses are unclear and his punishment is unknown.

   d.  On 25 March 1981, a summary court-martial found him guilty of disobeying a lawful order, and being absent from his appointed place of duty.  He was sentenced to reduction to pay grade E-2.
   
   e.  On 8 February 1982, a summary court-martial found him guilty of failure to go to his appointed place of duty at the prescribed time on three separate occasions.  He was sentenced to a forfeiture of $206.00 pay (suspended for 180 days) and to be confined for 15 days.

4.  On 15 July 1982, the applicant's unit commander informed the applicant of his intention to recommend that the applicant be separated under the provisions of chapter 14, Army Regulation 635-200 for misconduct.  

5.  On the same date the applicant consulted with counsel and waived consideration of his case by a board of officers.  He did not submit statements in his own behalf.  He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life as a result of a discharge under other than honorable conditions and that he might be ineligible for many or all Federal and State veteran's benefits.


6.  The intermediate commanders recommended approval of the recommendation.  The separation authority approved the recommendation and directed that the applicant be discharged under other than honorable conditions and administratively reduced to pay grade E-1.

7.  Accordingly, on 23 August 1982 the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, for misconduct-frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  His DD Form 214 shows he had completed 4 years, 4 months and 5 days of active military service and he had 
1 day of recorded lost time.

8.  On 2 April 1985, the Army Discharge Review Board denied the applicants request to upgrade his discharge under that board's statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  At that time, specific categories included frequent incidents of a discreditable nature with civilian or military authorities. Current categories are minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  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 he requested his discharge through the chaplain and that he was not discharged for misconduct as his DD Form 214 suggests.

2.  The applicant's administrative discharge was accomplished in accordance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The available evidence clearly shows the applicant was discharged for misconduct.  The applicant's misconduct is adequately demonstrated by his NJP actions and court-martial convictions.  The applicant has failed to establish a basis for an upgrade of his discharge to a general or honorable characterization of service.

4.  There is no evidence to support the applicant's contentions and no rational to support the relief requested.

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)                                         AR20090013198



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ABCMR Record of Proceedings (cont)                                         AR20090013198



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