BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019070 


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 an honorable or a general under honorable conditions discharge.

2.  The applicant states:

	a.  he wants to be eligible for all Department of Veterans Affairs benefits, 

	b.  he does not know why he was court-martialed,

	c.  his record up to the point of his court-martial was all good, and

	d.  he received three letters of commendation.

3.  The applicant provides no documentation 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 enlisted in the Regular Army on 16 May 1978 and he reenlisted on 18 December 1980.  He was trained in and awarded military occupational specialty 19D (Cavalry Scout).

3.  The record is void of documentation showing the applicant received any letters of commendation.

4.  On 19 October 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty and for being disrespectful in language to a superior noncommissioned officer.  His punishment included reduction to the rank/grade of private (PV2)/E-2 (suspended), forfeiture of $150.00 ($100.00 suspended), extra duty for 14 days, and restriction for
14 days (suspended).

5.  On 7 November 1981, the suspension of the punishment imposed on
19 October 1981 was vacated and ordered duly executed.

6.  On 18 February 1982, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty and for stealing fuel, the property of the U.S. Government.  His punishment included reduction to the private (PV1)/E-1, forfeiture of $128.00, and extra duty and restriction for 14 days.

7.  On 3 March 1982, the applicant's troop commander initiated a DA Form
4126-R (Bar to Reenlistment Certificate) against him to bar him from reenlistment.  The basis for this action was the applicant's record of NJP; his repeated demonstration of his unwillingness to perform in the military service; his substandard duty performance, military bearing, and personal appearance and conduct; his numerous counselings for failing to meet duty obligations, and his enrollment in the command overweight program.  The commander lastly stated the applicant was totally unsuitable for further service.

8.  On 18 March 1982, the appropriate authority approved the bar to reenlistment action.

9.  The record shows that on 4 June 1982 the applicant was tried by a summary court-martial and found guilty of the following:

* four specifications of failure to repair (FTR)
* disobeying a lawful command
* failure to pay a just debt

10.  On 10 June 1982, the applicant was assigned to the U.S. Army Retraining Brigade, Fort Riley, KS.  While assigned to the Retraining Brigade, the applicant received numerous negative training progress notes, each of which he acknowledged with his signature.

11.  The applicant's discharge packet is not contained in the available records.  However, his records contain a duly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 August 1982.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-33b(1), by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities.

12.  It further shows he was discharged with an under other than honorable conditions discharge and that he completed 4 years, 2 months, and 19 days of total active service.

13.  There is no indication the applicant petitioned the Army Discharge Review Board within that board's 15-year statute of limitations.

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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.

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 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's request for upgrade of his under other than honorable conditions discharge was carefully considered but not supported by the evidence.

2.  Although the applicant states he does not know why he was tried by court-martial, he has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings against him that led to his discharge or that his rights were not protected throughout the proceedings.

3.  Based on his record of indiscipline, which includes accepting NJP on two occasions, conviction by a summary court-martial of several offenses punishable under the UCMJ, and failure to complete retraining, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general under honorable conditions or an honorable discharge.

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)                                         AR20090019070



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ABCMR Record of Proceedings (cont)                                         AR20090019070



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