IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011790 


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 to a general discharge.

2.  The applicant states, in effect, it has been over 20 years since his discharge and he would like to have his discharge upgraded.

3.  The applicant provides no additional documentation.

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.  After completing 1 year, 7 months, and 15 days of net active service in the Utah Army National Guard, the applicant enlisted in the Regular Army on 3 August 1983 and he completed training as a cannon crewman.

3.  The applicant had nonjudicial punishment (NJP) imposed against him on four separate occasions between 28 October 1983 and 8 August 1984 for the following offenses:

* Failure to be at his appointed place of duty
* Being disrespectful to a noncommissioned officer
* Being absent from his unit
* Wrongfully using marijuana

4.  He was also counseled on five separate occasions between 21 October 1983 and 6 September 1984 as a result of the following offenses:

* Failure to be at his appointed place of duty
* Being disrespectful to a noncommissioned officer
* Failure to be at formation
* A pattern of misconduct

5.  On 16 August 1984, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 14, for misconduct.  He acknowledged receipt of the notification on 17 August 1984 and, after consulting with counsel, he elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge on 2 October 1984 and he directed the issuance of a discharge under other than honorable conditions.

7.  Accordingly, on 10 October 1984, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct.  He had completed 1 year, 2 months, and 8 days of net active service this period.

8.  The available evidence does not show the applicant ever 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 (Personnel Separations) 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 include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

10.  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 contentions have been considered.  However, he was discharged in accordance with the applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

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

3.  The available evidence shows NJP was imposed against him for four separate incidents and he was counseled on five separate occasions as a result of his acts of misconduct.  

4.  Although it has over 20 years since he was discharged, considering the nature of his offenses and his numerous acts of indiscipline, the type of discharge he was issued appropriately reflects his overall record of service.

5.  The applicant has not shown error or injustice in the type of discharge he was issued.





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)                                         AR20100011790



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ABCMR Record of Proceedings (cont)                                         AR20100011790



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