IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007379 


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 general discharge be upgraded to honorable.

2.  The applicant states he did not do anything illegal that should have caused him to receive a general discharge.  He received his first nonjudicial punishment because he had cigarettes, liquor, and a television in the apartment where he was living with a Polish girl.  He was reduced from pay grade E-5 to E-4 for black marketing.  His second nonjudicial punishment was for misplacing a classified communications book.  He tried to talk to the company commander about this punishment and explained that he would soon be going to Fort Hood, Texas.  The commander told him that he would not be going to Texas; but rather, he would be going home because he was going to be discharged.  He was never arrested or convicted of anything.  He served his country for more than 5 years and does not believe he should have received a general discharge.

3.  The applicant provides, in support of his application, 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.  On 17 October 1979, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 19E (Armor Crewman) and he was assigned to the Federal Republic of Germany.

3.  On 17 April 1982, the applicant was assigned to Headquarters and Headquarters Company, 4th Battalion, 64th Armored Regiment, located in Germany.  This unit was later re-designated as C Company, 3rd Battalion, 
69th Armored Regiment.

4.  On 4 July 1982, the applicant was promoted to specialist five, pay grade E-5.

5.  On 30 August 1984, the applicant's company commander notified him that he was intending to take action to effect his discharge for misconduct.

6.  The applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.

7.  On 12 September 1984, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to a pattern of misconduct, as follows:

	a.  on 24 March 1984, he was corrected by the company commander for being out of uniform in front of the battalion commander;

	b.  on 4 April 1984, he was reprimanded for sleeping on the back deck of his tank during prime training time;

	c.  on 6 June 1984, he was corrected by company commander for wearing an improper uniform;

	d.  on 2 May 1984, he was asleep at his guard post and failed to conduct the required arms room security inspections;

	e.  on 14 July 1984, he lost a confidential document during field training and failed to report the loss;

	f.  on 19 July 1984, he received nonjudicial punishment for wrongful transfer of rationed items to a German civilian and was reduced to pay grade E-4;

	g.  on 26 July 1984, he received written counseling for missing duty formation due to overconsumption of alcohol;

	h.  as of July 1984, he received three traffic tickets, two of which were for unserviceable tires;

	i.  as of August 1984, he had not paid traffic tickets received in December 1983;
	
	j.  on 23 August 1984, he was apprehended for larceny of Government property and the wrongful disposition of Government property, resulting in nonjudicial punishment and reduction to pay grade E-2; and

	k.  as of 11 September 1984, he had not paid his phone bill with a balance still owed from 29 May 1984.

8.  The company commander stated that due to the nature of the applicant's continued misconduct retention in the service would not be in the best interest of the military.  The battalion commander recommended a waiver of a rehabilitative transfer and issuance of a General Discharge Certificate.

9.  On15 October 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

10.  Accordingly, on 5 November 1984, the applicant was discharged under honorable conditions.  He had completed 5 years and 19 days of creditable active service.

11.  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 a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

12.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable because he served his country more than 5 years and does not believe he should have received a general discharge.

2.  The record shows between March and September 1984 the applicant was involved in approximately a dozen incidents of misconduct.  This is clearly a pattern of misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  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)                                         AR20100007379



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)