IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100000579 


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 discharge.

2.  The applicant states he has been a good citizen for the past 29 years and he has been married for 4 years.

3.  The applicant provides copies of documents from his military service personnel records.

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 9 February 1976 and upon completion of initial entry training he was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

	a.  21 July 1977, for disobeying a lawful command from his superior commissioned officer; and

	b.  11 September 1977, for being derelict in the performance of his duties by negligently failing to be prepared for an inspection by his battery commander.

4.  The applicant was discharged for the purpose of immediate reenlistment on 11 September 1978.  On the following day, he reenlisted for 3 years.

5.  The applicant accepted NJP under the provisions of Article 15 of the UCMJ on the following dates:

	a.  11 December 1979, for 2 specifications of failing to go at the time prescribed to his appointed place of duty, for missing his battery's movement, and for violating a lawful general regulation by having 14 rounds of live ammunition in his room;

	b.  20 March 1980, for 2 specifications of disobeying a lawful order from a noncommissioned officer;

	c.  23 June 1980, for being absent from his unit from 5 June 1980 to 6 June 1980.

6.  The applicant's record also contains documentation that shows he was counseled on numerous occasions from January 1980 to June 1980 by members of his chain of command for a number of infractions.

7.  On 2 July 1980, the applicant's unit commander notified the applicant of his recommendation for separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - pattern of misconduct.

8.  On 3 July 1980, the applicant was advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14.  He waived consideration of his case and personal 

appearance before a board of officers, and he elected not to submit a statement in his own behalf.  He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He further understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, that that he may expect to encounter substantial prejudice in civilian life.

9.  The unit commander submitted his recommendation through the appropriate chain of command.  The applicant's battalion commander recommended approval of the separation action.  He cited as the reasons for his recommendation the applicant's repeated instances of failure to follow instructions, disobedience of orders, absence without leave, and failure to repair. 

10.  On 11 September 1980, the appropriate separation authority approved the separation action and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  He also directed the applicant's reduction to the lowest enlisted grade.

11.  On 18 September 1980, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct - frequent incidents of discreditable nature with civil or military authorities, with a characterization of service of under other than honorable conditions.

12.  On 31 March 1982, the Army Discharge Review Board determined the applicant was properly discharged and denied his request for an upgrade of his discharge.

13.  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, 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  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.

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's contention that his discharge should be upgraded because he has been a good citizen for the past 29 years has been carefully considered.

2.  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.

3.  The applicant's record of indiscipline includes several counseling statements and punishment under Article 15, UCMJ on three occasions during his second term of service.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As a result, his overall record of service did not support the issue of an honorable or a general discharge by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

4.  In order to justify a 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.








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.



      ________________________
               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)                                         AR20100000579



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)