IN THE CASE OF:
BOARD DATE: 21 September 2010
DOCKET NUMBER: AR20100012701
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 discharge under honorable conditions (general).
2. The applicant states:
* He has never used or asked for any benefits for the Department of Veterans Affairs (VA)
* He knows he "did wrong"
* If he could serve all over again he would do things differently and retire from the Army
* He strongly believes in the system and he believes he should be given another chance
* He is a lot older now and he is a Born Again Christian
* He is now in need of medical attention as he is a diabetic and under the care of a health clinic, under Medicaid
* He and his wife cannot afford medical insurance
* He needs to be around for his family if for nothing else
* According to the VA Hospital in San Antonio, Texas, a general discharge is sufficient enough to be treated there.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 10 May 1979, the applicant enlisted in the Army for 4 years. He completed training as a light wheel vehicle/power generation mechanic.
3. Nonjudicial punishment (NJP) was imposed on the applicant on the following dates for the offenses shown:
* 11 April 1980, for being absent without leave (AWOL) from 24 March 1980 until 27 March 1980
* 22 September 1980, for assault by striking another Soldier with his hand
* 9 December 1980, for dishonorably failing to pay just debts in the amount of $78.40 and for willfully disobeying a lawful order from his superior noncommissioned officer to report to him
* 11 February 1981, for being AWOL from 3 February 1981 until 9 February 1981
4. His punishments included:
* Correctional custody
* Reductions in pay grade
* Forfeitures of pay
* Restrictions
* Extra duties
5. The applicant was convicted by a summary court-martial on 27 March 1981 of being AWOL from 23 March 1981 until 25 March 1981. His sentence included:
* A forfeiture of pay
* Restriction
* Extra duty
6. On 2 April 1981, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14, for misconduct, due to frequent involvement in incidents of a discreditable nature with military or civil authorities. He acknowledged receipt of the notification and, after consulting with counsel, he waived his right to submit a statement in his own behalf.
7. The appropriate authority approved the recommendation for discharge on 4 May 1981 and he directed the issuance of a discharge under other than honorable conditions.
8. Accordingly, on 1 June 1981, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to frequent involvement in incidents of a discreditable nature with civil or military authorities. He had completed 2 years and 11 days of net active service this period.
9. 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.
10. 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.
11. 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, the applicant was issued a discharge that reflects his overall record of service.
2. His records show that he had NJP imposed against him on four separate occasions and he was convicted by a summary court-martial as a result of his acts of misconduct. Considering the nature of his offenses, it does not appear that the type of discharge he received is too harsh.
3. The fact that the applicant is now in need of medical treatment is not a sufficient justification to warrant the requested relief.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20100012701
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ABCMR Record of Proceedings (cont) AR20100012701
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