IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090015934 


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 discharge.

2.  The applicant states that he was railroaded and singled out by his unit.  He further states that after a four-day pass his vehicle broke down on the way back to his unit and he was issued an Article 15 for missing a day.

3.  The applicant provides two character reference letters and a copy of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 record shows he enlisted in the Regular Army (RA) on
9 August 1978 for a period of 3 years.  He completed the required training and was awarded military occupational specialty (MOS) 31V (Tactical Communications System Operator/Mechanic).  Records further show that he reenlisted on 27 February 1981 and served continuously until his discharge on 13 September 1983.  The highest rank/grade he attained while serving on active duty was specialist (SP4)/E-4. 

3.  Between March and November 1982, the applicant received 10 general counseling statements for being overweight, failing to repair, and for failing to report to his appointed place of duty.

4.  On 20 May 1982, the applicant received a letter of reprimand for failing to have the required automobile insurance after being in an automobile accident.

5.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:  on 16 June 1982 for two offenses of failing to go at the time prescribed to his appointed place of duty on 9 June 1982, on 16 September 1982 for being absent without leave (AWOL) during the period 8 September 1982 to
9 September 1982, and on 24 May 1983 for being AWOL during the period
25 April 1983 to 2 May 1983.  His imposed punishments included reductions, forfeitures of pay, extra duties, and placement in the Correctional Custody Facility.

6.  On 21 July 1983, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12b(2), for misconduct.  He cited the reason for his proposed action was the applicant's NJP's, a vacation of suspended punishment, a letter of reprimand, and numerous of counseling statements.  The unit commander advised the applicant of his rights.

7.  On 21 July 1983, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action, its effects and of the rights available to him.  The applicant waived his rights to be considered by an administrative separation board, personal appearance before a board of officers, consulting counsel and representation by military counsel.  The applicant elected not to make a statement in his own behalf and acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge.


8.  On 6 September 1983, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct and directed that he be discharged with an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 13 September 1983, the applicant was discharged accordingly.  The
DD Form 214 he was issued shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct.  This form further shows the applicant completed a total of 5 years and 13 days of creditable active service.

10.  The applicant provided two character reference letters written by his former employers, who described him as being trustworthy, a true professional, and a great asset to their company.

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

12.  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 include 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

13.  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's contention that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's unit commander notified him of the contemplated separation action and that he consulted legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.

3.  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.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of NJP on three separate occasions and his failure to respond to rehabilitative efforts that include numerous counseling and a letter of reprimand.  Based on this record of indiscipline the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general, under honorable conditions discharge.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20090015934



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ABCMR Record of Proceedings (cont)                                         AR20090015934



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