IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007836 


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.

2.  The applicant states:

* he was not afforded proper counsel at the time of his discharge that would have allowed him to make an informed decision
* he was never evaluated to determine his mental state at the time of his discharge
* he was suffering from mental turmoil from November 1978 until he was discharged
* his mother passed away 1 month to the day of his enlistment
* he was not once offered counseling to help him with his bereavement
* he was told by a Judge Advocate General (JAG) officer that a discharge under other than honorable conditions is automatically upgraded after 1 year

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 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 12 October 1978, the applicant enlisted in the Regular Army for 4 years.  He completed training as a wire systems installer.

3.  Nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following dates for the stated offenses:

* 23 January 1979 for violating a command letter by wrongfully having in his possession one bottle of Sloe Gin, a six pack of beer, and an undetermined amount of marijuana on 20 January 1979
* 22 February 1979 for two incidents of failing to go at the time prescribed to his appointed place of duty on 9 and 10 February 1979, respectively; and one incident of being derelict in the performance of his duties on
10 February 1979
* 28 June  1979 for two incidents of willfully disobeying a lawful order received from a superior noncommissioned officer on 30 May 1979
* 4 October 1979 for wrongfully having in his possession some quantity of marijuana on 13 September 1979

4.  The facts and circumstances surrounding the applicant's case are not on file.  The applicant's records contain no evidence showing he was undergoing turmoil as a result of his mother's death or that he was not afforded proper counsel that would have allowed him to make an informed decision prior to his discharge.

5.  His DD Form 214 shows he was discharged on 17 April 1980 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-33b, for misconduct, due to frequent incidents of a discreditable nature with civil or military authorities.  As a result, he was issued an under other than honorable conditions discharge.  He completed 1 year,
6 months, and 6 days of net active service this period.

6.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.
7.  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, 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.

8.  Army Regulation 635-200, paragraph 1-30 (Medical evaluation), in effect at the time, states medical examinations are required for members being separated under the provisions of paragraphs 5-3, 5-6, 5-14, section II of chapter 8, chapter 9, chapter 13, and paragraph 14-23.  Medical examinations, including mental status evaluations, under any other provision of this regulation are not required, but may be requested by the member in writing.

9.  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.  

10.  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 type of discharge directed was appropriate considering all of the available facts of his case.

3.  The applicant's records contain no evidence showing he was undergoing turmoil as a result of his mother's death or that he was not afforded proper counseling prior to his discharge.

4.  His records show he had NJP imposed against him on four separate occasions as a result of his acts of misconduct.

5.  His contention regarding his failure to be mentally evaluated has also been considered.  However, there is no evidence of record showing he requested a medical examination, including a mental status evaluation, prior to his discharge. Additionally, there was no requirement for a medical examination or a mental status evaluation based on the authority and reason for his discharge.  Therefore, his contentions are not sufficiently mitigating to warrant the requested relief.

6.  The applicant's available records do not contain evidence showing that he was told by a JAG officer that a discharge under other than honorable conditions is automatically upgraded after 1 year.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  It appears his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the applicant's requested relief in this case.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

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)                                         AR20100007836



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ABCMR Record of Proceedings (cont)                                         AR20100007836



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