BOARD DATE: 13 July 2010
DOCKET NUMBER: AR20090021497
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 that his discharge be upgraded to general under honorable conditions.
2. The applicant states that on 1 July 2009 he learned he has diabetes.
3. The applicant provides a copy of his DD Form 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 enlisted in the Regular Army on 12 April 1978. He completed training, advanced to pay grade E-4, and reenlisted on 17 December 1980.
3. He received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:
* September 1979, for two specifications of failure to go to his place of duty
* May 1980, for three specifications of absence from his place of duty
* June 1981, for disrespect to and communicating a threat to kill to a sergeant first class and disrespect to another sergeant first class
* September 1981, for being absent without authority from his unit
4. On 29 October 1981, the applicant was being held by civilian authorities in Bell County, Texas. On 7 November 1981, he was placed on probation for 6 months on charges of criminal mischief.
5. On 6 January 1982, the applicant's commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b(1), for misconduct due to frequent incidents of a discreditable nature. The commander indicated that rehabilitation would not produce 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. The intermediate commanders recommended separation under other than honorable conditions. On 18 January 1982, 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 Certificate).
8. On 26 January 1982, the applicant was discharged accordingly. He had completed 3 years, 8 months, and 10 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 3-7b, 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 requests his discharge be up graded. On 1 July 2009, he learned he had diabetes.
2. The record shows four nonjudicial punishments and a civilian conviction during his period of service. Clearly, this shows a frequency of incidents of a discreditable nature.
3. The applicant's administrative separation was accomplished in compliance with applicable regulations.
4. 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 a general 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) AR20090021497
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