IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010120 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* his discharge is unjust because at the time of his discharge he had made his supervisor (a major) upset after going over her head to the head of nursing about her behavior toward trainees on the ward
* his supervisor overheard some of the conversation between the colonel and himself and after that his supervisor followed him around and wrote him up on every little infraction, true or not
* before that he had only good reports in his record other than an Article 15, which was hardly a crime anywhere else except in the military
* his commanding officer suggested the path he ultimately took
 
3.  The applicant provides no documentary 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 enlisted in the Regular Army on 16 March 1979 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 91B (medical specialist).  On 17 September 1981, he was honorably discharged for immediate reenlistment.  He reenlisted on 18 September 1981 for a period of 6 years.

3.  On 10 December 1981, nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order (fraternizing with a female patient).

4.  On 27 April 1982, NJP was imposed against the applicant for being absent without leave for 1 hour.

5.  Based on statements of observation, the applicant's record of unpunished indiscipline included:

* taking a long lunch
* not returning to work on time
* not following instructions
* leaving the ward without proper authority
* not reporting to the charge nurse before leaving and upon his return to the ward when he did have permission to leave 

6.  On 3 May 1982, the applicant's unit commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b(1), for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

7.  On 10 May 1982, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further understood that as the result of issuance of a discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

8.  On 7 June 1982, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a discharge under other than honorable conditions.

9.  The applicant was discharged under other than honorable conditions on 14 June 1982 under the provisions of Army Regulation 635-200, paragraph 
14-33b(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He had served a total of 3 years, 2 months, and 29 days of creditable active service.

10.  On 4 April 1984, the Army Discharge Review Board denied the applicant's request for a general discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 14-33b(1) provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally considered appropriate.

12.  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.

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 record of service during his last enlistment included two NJP's.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20100010120



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ABCMR Record of Proceedings (cont)                                         AR20100010120



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