IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100009087 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was given bad information by his superior officer.  He was told to simply refuse to do anything and to get out of the service.  He had lost his family at the time.  Had he been given the right information, he could have received a hardship discharge under honorable conditions.  He only did what he was told and should have received an honorable discharge.

3.  The applicant did not provide any additional documentary evidence.

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's records show he initially enlisted in the Regular Army (RA) for a period of 3 years on 30 July 1975.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Food Service Specialist).  

3.  He was honorably discharged on 29 January 1978 for the purpose of immediate reenlistment and he executed a 6-year reenlistment on 30 January 1978.  The highest rank/grade he attained during his service was specialist five (SP5)/E-5.

4.  His records further show he served in Germany from 22 August 1980 to 18 April 1981.  He was awarded the Good Conduct Medal and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

5.  His records also show he had a history of lost time in the form of absence without leave (AWOL) and/or confinement as follows:

* From 31 March to 12 April 1981, AWOL
* From 16 April to 20 April 1981, AWOL
* From 7 May to 17 June 1981, Confinement

6.  His records also show he was reduced from SP5/E-5 to specialist four/E-4 on 15 April 1981.

7.  The facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a properly-constituted 
DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 21 July 1981 under the provisions of paragraph 14-33b of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct (Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities) in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.  This form also shows he completed a total of 5 years, 9 months, and 22 days of creditable active service and he had 60 days of lost time.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time, 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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

10.  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. 

11.  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 contends his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant’s record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 21 July 1981 under the provisions of paragraph 14-33b of Army Regulation 635-200 for misconduct with an under other than honorable conditions discharge.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

4.  The applicant's contention that he was given bad advice by his superiors was carefully considered.  However, the applicant was a SP5/E-5 and he should have known that acts of misconduct, such as being AWOL or frequent involvement in incidents of a discreditable nature with civil or military authorities, could lead to an under other than honorable conditions discharge.  
5.  The available evidence shows a military career marred with misconduct that included two instances of AWOL, one instance of confinement, and at least one instance of reduction in rank.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.  Therefore, he is not entitled to relief.

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)                                         AR20100009087



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ABCMR Record of Proceedings (cont)                                         AR20100009087



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