BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100000993 


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 an upgrade of his general discharge to honorable.

2.  The applicant makes no statement.

3.  The applicant provides no additional documentary evidence in support of his request.

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 and entered active duty in the Regular Army for a period of 3 years on 15 September 1982.

	a.  Upon completion of training he was awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist).

	b.  He served in duty MOS 76W1O while assigned to Company A, 1st Support Battalion, Fort Lewis, WA, from 11 March 1983 through 5 July 1984.

	c.  He was advanced to pay grades E-2 and E-3 and he was promoted to specialist four/E-4 on 1 December 1983.

   d.  He was assigned overseas to Germany on 10 August 1984 and served in duty MOS 76W1O with Headquarters and Headquarters Company, 1st Battalion, 54th Infantry.

3.  On 15 March 1985, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for stealing a cassette holder of a value of $16.00 and a pair of boots of an undetermined value, the property of another Soldier, and making a false statement under lawful oath.  His punishment consisted of reduction to private/E-2, forfeiture of $347.00 pay per month for 2 months, 45 days of extra duty, and 45 days of restriction.

4.  On 15 March 1985, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on commission of a serious offense.  The reasons for the commander's action were based on larceny, misprision of a serious offense, false swearing, illegal transfer of vehicle license plates, and owning and operating an unregistered privately-owned vehicle (POV).  The applicant was advised of his rights and the separation procedures involved.

5.  On 29 March 1985, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He acknowledged that military legal counsel for consultation was available to assist him and he declined that opportunity.

	b.  He elected not to submit statements in his own behalf.

	c.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

	d.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	e.  The applicant placed his signature on the document.
   
6.  On 4 April 1985, the company commander recommended the applicant be discharged for misconduct and the battalion commander recommended approval of the separation action.

7.  On 9 April 1985, the separation authority waived a rehabilitation transfer and approved the applicant's separation.  The separation authority also directed the applicant be issued a General Discharge Certificate.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in pay grade E-2 on 29 April 1985 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct and his service was characterized as under honorable conditions.

	a.  At the time he had completed 2 years, 7 months, and 15 days of net active service this period with 8 months and 22 days of foreign service.

	b.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Hand Grenade Bar.

9.  There is no evidence 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or is unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	b.  Chapter 3, paragraph 3-7a, of the current regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge under honorable conditions should be upgraded to an honorable discharge based upon a review of his military personnel records.

2.  Records show the applicant qualified as expert with the hand grenade and as sharpshooter with the M-16 rifle.  He completed training and was awarded MOS 76W and the Army Service Ribbon.  He was promoted to pay grade E-4.

3.  The evidence of record shows that during the applicant's period of military service under review he received NJP for larceny, misprision of a serious offense, and false swearing, and he was reduced to private/E-2 and never regained his previous rank.  The applicant also owned and operated an unregistered POV in Germany.  Thus, the evidence of record shows the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  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 were therefore appropriate considering all the facts of the case.

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.



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)                                         AR20100000993



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)