IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009325 


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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states his discharge is not in error or unjust and that he has nothing to stand on except to ask for mercy and forgiveness for his actions.

3.  The applicant provides no additional evidence in support of 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's military personnel records show he initially enlisted in the Regular Army on 22 June 1974.  He reenlisted on 30 December 1967, 
3 October 1979, and 1 October 1982.

3.  The applicant's records contain DA Forms 4856 (Developmental Counseling Form), dated from 6 October 1982 to 11 May 1983, that document he was formally counseled on 19 occasions for:

* missing formation
* missing formation for guard mount
* financial responsibility for his wife/ex-wife
* missing movement
* failure to obey a direct order from a staff sergeant
* failure to properly maintain his uniform appearance

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions for:

* failure to go at the time prescribed to his appointed place of duty
* being drunk and disorderly 

5.  On 23 May 1983, the applicant received a mental status evaluation.  The examiner found the applicant met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings deemed appropriate by his chain of command.

6.  On 8 June 1983, the applicant was convicted in civilian court of child abuse, a Class I misdemeanor.  He was sentenced to pay $38.00, 6 months in jail, and 
1 year on probation.

7.  The applicant's commander notified him he was initiating separation action against him under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations, Enlisted Personnel) due to misconduct.  The applicant was also notified that the separation authority may direct that he be issued an honorable discharge, and under honorable conditions discharge, or an under other than honorable conditions discharge.

8.  The commander advised the applicant of his right to:

* have his case considered by a board of officers
* appear in person before a board of officers 
* waive any of these rights
* withdraw any waiver of rights prior to the date the discharge authority directs or approves his discharge and request that his case be presented before a board of officers
* consult with counsel
* submit written statements in his own behalf
* obtain copies of documents that would be sent to the separation authority

9.  On 17 October 1983, after having consulted with counsel the applicant submitted a statement:

* acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 14 of Army Regulation 635-200 for misconduct
* waiving consideration by a board of officers 
* waiving a personal appearance
* stating that he was not submitting statements in his own behalf

10.  The applicant also acknowledged he understood that as a result of the issuance of an under other than honorable conditions discharge he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

11.  On 1 November 1983, the appropriate authority approved the recommendation for discharge under the provisions of paragraph 14-12b (2) of Chapter 14 of Army Regulation 635-200 and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 10 November 1983, the applicant was discharged under the provisions of paragraph 14-12b of Chapter 14 of Army Regulation 635-200.  

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 21 June 1985, the ADRB denied the applicant's request for an upgrade of his discharge.  The ADRB determined the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribed procedures for 

separating members for misconduct.  Paragraph 14-12b provides for the separation of a Soldier due to a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Solder discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

15.  Army Regulation 635-200 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.  

16.  Army Regulation 635-200 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.  

2.  The applicant received formal counseling concerning his deficiencies on
19 occasions in less than 8 months.  In addition, he accepted NJP on two occasions.  This clearly shows a pattern of misconduct and that he did not meet the standards of acceptable conduct and performance of duty.  The additional civil conviction shows his service was unsatisfactory.  

3.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  In view of the above, there is insufficient evidence to upgrade the applicant's under other than honorable conditions discharge.


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)                                         AR20100009306



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)