IN THE CASE OF:
BOARD DATE: 6 July 2010
DOCKET NUMBER: AR20100000151
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 his discharge under other than honorable conditions be upgraded to an honorable discharge.
2. The applicant states:
* He was a good Soldier
* He served his country with honor
* It has been over 25 years since his discharge
3. The applicant provides no additional documentation.
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 applicants 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 applicants 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 17 August 1977 in the pay grade of E-1. He completed training as a lifting/loading equipment operator and was promoted through the ranks to specialist (E-4).
3. Nonjudicial punishment (NJP) was imposed against the applicant on 12 March 1979 and on 23 May 1979 for the following offenses:
* Failure to go to his appointed place of duty
* Being absent without leave (AWOL) from 21 May 1979 until 22 May 1979
* Making a false official statement to his commanding officer
4. His punishment consisted of:
* Reduction in pay grade
* Correctional custody
* Forfeitures of pay
* Extra duty
5. On 8 November 1979, the applicant was convicted by special court-martial of being AWOL from 24 July 1979 until 11 September 1979. He was sentenced to:
* Confinement at hard labor (suspended until 30 April 1980)
* Reduction in pay grade
* Forfeiture of pay
6. The facts and circumstances surrounding the applicant's discharge are not on file. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 September 1980, under other than honorable conditions, under the provisions of Army Regulation 635-200, paragraph 14-33b(1), due to frequent involvement in incidents of a discreditable nature with civil or military authorities. He had completed 2 years, 4 months, and 12 days of net active service this period.
7. His DD Form 214 also shows the following lost time during this period of service:
* 24 July 1979 through 10 September 1979
* 8 November 1979 through 27 December 1979
* 25 March 1980 through 30 March 1980
* 16 April 1980 through 14 September 1980
8. The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.
9. 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 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.
10. Army Regulation 635-200, paragraph 3-7a, of 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.
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's contentions have been considered and they are not substantiated by the available evidence.
2. The available evidence shows that NJP was imposed against him twice and he was convicted by a special court-martial as a result of misconduct.
3. Although it has been over 25 years since he was discharged considering the nature of his offenses and his numerous acts of indiscipline, the type of discharge he was issued appropriately reflects his overall record of service.
4. The applicant has not shown error or injustice in the type of discharge he was issued.
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) AR20100000151
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ABCMR Record of Proceedings (cont) AR20100000151
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