IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012422 


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 to honorable and his records be reviewed to determine why he did not receive his enlistment bonus.

2.  The applicant states upon his separation he was informed by his company commander that his discharge would be automatically upgraded after one year.  In addition, he signed up for a $2,500.00 bonus which he never received.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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.  On 16 April 1975, he enlisted in the Regular Army for a period of 4 years.  He completed his initial training and was awarded military occupational specialty 12F (Engineer Track Vehicle Crewman).  His enlistment contract does not indicate he was entitled to a bonus.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 15 March 1976 for the wrongful possession of one gram, more or less, of marijuana.

4.  On 3 May 1976, his commander requested he be barred to reenlistment.  Item 12 of his DA Form 4126-R, reads, "[applicant] has admitted to continuing drug abuse on 29 April 1976.  He presents a unsatisfactory appearance most of the time and creates major morale problem for his section leaders.  He has stated to me [commander] that his only desire is to get out of the U.S. Army any way that he can and go back to civilian life where his drug abuse will be more tolerated."  His bar to reenlistment was approved on 20 May 1976.

5.  On 17 May 1976, he was convicted by a summary court-martial of as a result of previous indulgence in intoxicating liquor and drugs, incapacitated for proper performance of his duties.

6.  His punishments included forfeiture of $240.00 per month for 1 month, hard labor without confinement for 45 days, and reduction to the pay grade of E-1.

7.  On 23 July 1976, records show he had an approved chapter 10 and his flagging action was transferred to the U.S. Army Transfer Point, Fort Dix, NJ.

8.  The facts and circumstances surrounding his discharge are not on file.  His DD Form 214 shows he was discharged on 27 July 1976, in pay grade E-1, under other than honorable conditions, under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.

9.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, of 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.

12.  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 requests his under other than honorable conditions discharge be upgraded to honorable and his records be reviewed to determine why he did not receive his enlistment bonus.

2.  His record of indiscipline includes a UCMJ offense, bar to reenlistment and a summary court-martial conviction.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

3.  The evidence of record shows he enlisted for U.S Army Training of Choice MOS 12F20 (Engineer Track Vehicle Crewman); however, there is no evidence showing he was authorized a monetary bonus for this option.

4.  In view of the foregoing, his request should be denied.



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)                                         AR20100012422





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ABCMR Record of Proceedings (cont)                                         AR20100012422



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