IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090019867 


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 honorable.

2.  The applicant makes no statement.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 14 March 1974, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).   He was subsequently assigned to Fort Bliss, Texas, as a repair parts specialist.

3.  On 1 March 1976, the applicant departed Fort Bliss for duty in the Federal Republic of Germany.  He completed a 12-month tour of duty and returned to Fort Bliss on 11 April 1977.

4.  The applicant received the following nonjudicial punishments (NJP's) under the provisions of Article 15, Uniform Code of Military Justice:

	a.  18 February 1975 for being absent from his place of duty,

	b.  1 December 1976 for breach of peace,

	c.  15 July 1977 for being drunk while on duty,

	d.  9 November 1977 for failure to go to his appointed place of duty, and

	e.  16 January 1978 for failure to go to his appointed place of duty.

5.  On 21 December 1977, the applicant's commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5a(1) [commander cited wrong authority -- should have cited paragraph 14-33b(1)], for misconduct due to frequent incidents of a discreditable nature.  The commander indicated that rehabilitation would not have produced a quality Soldier.

6.  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.

7.  On 19 January 1978, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a DD Form 794A (Discharge Under Other Than Honorable Conditions).

8.  On 31 January 1978, the applicant was accordingly discharged.  He had completed 3 years, 10 months, and 17 days of creditable active service.

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

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33 provided for the separation of Soldiers for other acts or patterns of misconduct to include frequent incidents of a discreditable nature with civil or military authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed.

11.  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.

12.  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 record shows five NJP's during his period of service.  Clearly, this shows a frequency of incidents of a discreditable nature.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The commander's error of citing the wrong authority is not a fatal error that would have jeopardized the applicant's rights.

3.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.  Therefore, he is not entitled to an honorable or general 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.

5.  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)                                         AR20090019867



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ABCMR Record of Proceedings (cont)                                         AR20090019867



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