IN THE CASE OF:	  

		BOARD DATE:	    29 June 2010  

		DOCKET NUMBER:  AR20090021228 


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 discharge under honorable conditions.

2.  The applicant states, if he had been granted a rehabilitative transfer, he would have stayed in the Army.  He was not a problem.  He just had issues with a pay grade E-7 mess sergeant, who had it in for him.  He went to sick call and to mental health trying to get away from the unit.

3.  The applicant provides, in support of his request, copies of:

* a 23 August 1983 medical record showing the applicant reported a personality clash with his supervisor.  He reported getting upset at the sight of his supervisor.  He was worried about what might happen.  He states, "He doesn't need to be in the hospital and he doesn't need to be in jail."
* his two DD Forms 214 (Certificate of Release or Discharge 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.  The applicant, a food service specialist, with 2 years and 5 months of service, reenlisted in pay grade E-4, on 28 September 1978.  He was awarded the Good Conduct Medal for the period ending 28 March 1979 and was promoted to pay grade E-5 with a date of rank of 11 February 1980.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 6 July 1981, for failure to go to his appointed place of duty and was apparently barred from reenlistment. 

4.  The applicant received a 1 January 1982 letter of commendation from the battalion commander for his preparation of the Thanksgiving and Christmas dinners.   

5.  The bar to reenlistment was removed on 3 September 1982.
 
6.  He pled guilty at a summary court-martial to failure to go to his appointed place of duty on 23 August 1983, absence without leave (AWOL) from 25 to 29 August 1983, and willful disobedience of a lawful order from a sergeant first class.

7.  On 30 September 1983, the applicant was placed on probation by the local civilian judge for writing bad checks.  

8.  He pled guilty at another summary court-martial, on 1 November 1983, of failing to go to his appointed place of duty on 27 September 1983 and being AWOL from 11 to 17 October 1983.  

9.  The applicant was notified, on 14 November 1983, of recommended separation for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct.  He consulted with counsel; was advised of his rights; and waived a personal appearance before and consideration of his case by a board of officers, submission of statements in his own behalf, and representation by counsel.
10.  The applicant acknowledged that he understood if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  The intermediate commanders recommended approval of the recommendation.

12.  The separation authority approved the recommendation for discharge and directed discharge under other than honorable conditions.  On 28 December 1983, the applicant was discharged accordingly.  He had completed a total of 5 years, 2 months, and 21 days of creditable active military service during this period and 2 years, 5 months, and 29 days of prior active service.

13.  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.

14.  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.  Specific categories include a pattern of misconduct (consisting of discreditable involvement with civil or military 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.

15.  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 states, if he had been granted a rehabilitative transfer, he would have stayed in the Army.  He was not a problem.  He just had issues with a pay grade E-7 mess sergeant who had it in for him.  He went to sick call and to mental health trying to get away from the unit.
2.  The applicant's "issues" with his supervisor do not justify or mitigate his misconduct.  There is no available record that the applicant requested a rehabilitative transfer.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090021228





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ABCMR Record of Proceedings (cont)                                         AR20090021228



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