IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090016139 


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, in effect, that his under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he was offered a general discharge.  However, he was told that if he made it through the retraining brigade he could complete his tour of duty and receive an honorable discharge.  He failed to make it through the retraining brigade.  Therefore, he made the wrong decision and now he wants his discharge changed.

3.  The applicant provides, in support of his application, a copy of his DD Form 794A (Discharge Under Other Than Honorable Conditions) Certificate.

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.  On 17 February 1981, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 13 May 1981, the applicant departed the United States for duty in Europe with the 2nd Battalion, 36th Infantry Regiment.

4.  On 1 February 1982, the applicant was advanced to private first class, pay grade E-3.

5.  On 22 July 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty at the prescribed time (twice); for disobeying a lawful order by drinking on duty; and for disobeying lawful orders from a noncommissioned officer (twice).  His punishment included reduction to pay grade E2, a forfeiture of $309.00 pay, and 14 days of confinement at the Correctional Custody Facility.

6.  On 9 December 1982, the applicant was convicted by a summary court-martial of disobeying lawful orders.  His sentence consisted of confinement at hard labor for 30 days, a forfeiture of $382.00 pay per month for 1 month, and reduction to pay grade E-1.  He served 21 days in confinement.

7.  On 23 December 1982, the applicant was reassigned to the Retraining Brigade, located at Fort Riley, Kansas.  During the period 27 December 1982 through 28 January 1983, he was counseled on thirteen occasions for unsatisfactory performance. 

8.  On 8 February 1983, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct involving both civil and military authorities.  His continued disregard for authority and unwillingness to respond to counseling and rehabilitation efforts indicated a lack of potential to become a productive Soldier.

9.  On 11 February 1983, a medical examination found him to be qualified for separation.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.
10.  On 15 February 1983, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

11.  On 15 February 1983, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

12.  Accordingly, on 17 February 1983, the applicant was discharged under other than honorable conditions.  He had completed 1 year, 11 months, and 10 days of creditable active service.  He also had 21 days of lost time due to being in confinement.

13.  On 4 October 1989, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

14.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 he made a mistake and his discharge should be upgraded to general discharge under honorable conditions. 
2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge or an honorable discharge.

5.  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.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20090016139



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ABCMR Record of Proceedings (cont)                                         AR20090016139



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