BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010104 


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 a general discharge under honorable conditions.

2.  The applicant states that he graduated from the retraining brigade but decided not to reenlist.  However, he did not realize how this would impact him later.  He is now unemployed and in need of Department of Veterans Affairs (VA) medical care related to physical and health concerns he developed in the service. 

3.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 September 1981, 23 July 1976, and 30 September 1979
* Certification of Military Service, dated 30 September 1979
* National Guard Bureau Form 22 (Report of Separation and Record of Service), dated 22 February 1978
* Discharge orders, dated 26 February 1982

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 record shows he initially enlisted in the New Hampshire Army National Guard on or about 4 March 1976.  He entered active duty for training (ACDUTRA) on 4 April 1976, completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 94B (Cook).  He was honorably released from ACDUTRA to his ARNG unit on 23 July 1976.  

3.  On 23 February 1978, he was ordered to active duty and subsequently served with the 1st Squadron, 1st Cavalry in Germany.  He was honorably released from active duty on 30 September 1979 and he was transferred to the U.S. Army Reserve to complete his remaining Reserve obligation.

4.  His records also show he enlisted in the Regular Army for a period of 3 years on 13 February 1981 and was subsequently assigned to the 5th Infantry Division Artillery, Fort Polk, LA.

5.  On 1 May 1981, he departed his unit in an absent without leave (AWOL) status.  However, he returned to his unit on 5 May 1981. 

6.  On 22 June 1981, he again departed his unit in an AWOL status but returned to military control on 25 June 1981. 

7.  On 26 June 1981, he pled guilty at a summary court-martial to two specifications of being AWOL from 1 to 5 May 1981 and 22 to 25 June 1981, and one specification of breaking arrest on 18 June 1981.  The court sentenced him to confinement at hard labor for 30 days, a forfeiture of $300.00 pay, and reduction to the lowest enlisted grade.  His sentence was approved on 29 June 1981.

8.  On 9 July 1981, he was reassigned to Fort Riley, KS.  He was assigned to the 2nd Unit, 1st Battalion, U.S. Army Retraining Brigade. 

9.  His record reveals an extensive history of negative counseling by several members of his chain of command for various infractions including pass violation, unsatisfactory inspections, failure to report, late to formation, multiple instances of security violations, multiple instances of failing barracks inspections, smoking in the barracks, sleeping in class, unclean appearance, lack of motivation, failing to complete all phases of an obstacle course, unsatisfactory performance, poor military skills, unacceptable behavior, and several other infractions. 

10.  On 24 August 1981, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

11.  On 25 August 1981, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit a statement on his own behalf.  

12.  The applicant further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

13.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to misconduct- frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant was sent to the retraining brigade to receive correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and ability.  However, his actions since arrival precluded accomplishment of this objective as evidenced by his resume of behavior and attitude.  He had demonstrated little desire to return to duty.  He received considerable counseling since his arrival but his actions precluded rehabilitation and he did not respond favorably. 

14.  On 25 August 1981, his intermediate commander reviewed the recommended separation action and recommended approval.

15.  On 1 September 1981, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  
16.  On 4 September 1981, the applicant was afforded the opportunity to undergo a periodic medical examination in conjunction with his approved separation action; however, he waived the medical examination and stated there had been no significant change in his medical condition.  

17.  He was discharged on 4 September 1981.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with service characterized as under other than honorable conditions.  This form further confirms he completed a total of 2 years, 5 months, and 4 days of creditable active military service and he had 31 days of lost time.

18.  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.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such were merited by the Soldier's overall record.

20.  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 a general discharge.

2.  His record of service shows a history of misconduct that included two instances of AWOL, one court-martial, a period of confinement, and an extensive history of negative counseling.  He was sent to the retraining brigade correctional training but failed to improve his attitude and ability.  He demonstrated little desire to return to duty and despite receiving considerable counseling, he did not respond favorably.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's 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.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.  

4.  The applicant's need for VA medical care was noted; however, the ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  His record of service was not satisfactory and is insufficiently meritorious to warrant a general discharge.  Therefore, he is not entitled to the requested 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)                                         AR20100010104



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ABCMR Record of Proceedings (cont)                                         AR20100010104



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