IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008699 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states that when he was in a field artillery battery in Augsburg, Germany, he lost some of his battery in a car wreck that claimed the life of one Soldier and caused the discharge of others.  He goes on to state that he could not cope with the loss because he always blamed himself for the accident.  He also states that he started taking drugs to cope with the problem and to this day he hasn't "shook back."  He further states he wants a chance to return to active duty and support his country like he knows he can and to put this behind him.

3.  The applicant provides no additional documents with his application.

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 in Philadelphia, Pennsylvania, on 26 November 1979 for a period of 3 years, training as a cannon crewman, and assignment to Europe.  He completed his one-station unit training at Fort Sill, Oklahoma, and was transferred to Germany on 9 March 1980 for assignment to a field artillery battery in Augsburg, Germany.  He was advanced to pay 
grade E-4 on 26 February 1981.

3.  On 1 March 1981, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to pay grade E-3 (suspended until 1 May 1981) and extra duty.

4.  On 13 October 1981, NJP was imposed against him for the wrongful possession of marijuana in the hashish form.  His punishment consisted of a reduction to pay grade E-3 (suspended until 10 January 1982), a forfeiture of pay, extra duty, and restriction.  On 5 December 1981, the suspended reduction was vacated.

5.  On 11 January 1982, the applicant underwent a mental status evaluation and was deemed to have no significant mental illness.

6.  On 15 January 1982, the applicant was notified by his commander of his intent to initiate action to discharge the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for drug offenses and his frequent involvement in incidents of a discreditable nature with civil/military authorities.

7.  On 18 January 1982, after consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  On 20 January 1982, NJP was imposed against the applicant for committing perjury during a court-martial proceeding and for the wrongful possession, sale, and transfer of marijuana.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, extra duty, and restriction.

9.  On 3 February 1982, the appropriate authority (a brigadier general) approved the recommendation for discharge and directed that the applicant be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions on 18 February 1982 under the provisions of Army Regulation 635-200, paragraph 14-33b, due to misconduct for frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 2 months, and 23 days of total active service.

11.  On 8 March 1982 he applied to the Army Discharge Review Board for an upgrade of his discharge.  He was granted a personal appearance before that board to be convened in Washington, DC, on 18 October 1982.  He failed to appear before that board and his case was reviewed based on the evidence and argument previously submitted with his application and the evidence of record.  The board determined that under the circumstances, his discharge was both proper and equitable and voted unanimously to deny his request on 21 October 1982.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

13.  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 administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the nature of his offenses, his repeated misconduct, and his overall undistinguished record of service.

4.  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)                                         AR20100008699



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)