IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100012986 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his first three years of service were served honorably and he received the award of the Army Good Conduct Medal.  He offers his nervous condition and ongoing family problems led to his social problems during his final years of service.

3.  The applicant does not provide any additional documents 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’s record shows he enlisted in the Regular Army on 
22 September 1976.  He served 2 years, 10 months, and 8 days of his first 
3-year enlistment term and he reenlisted on 30 July 1979 for an additional
3 years.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* failing to go at the prescribed time to his appointed place of duty on
30 July 1980, 5 March 1981, 9 March 1981, 13 July 1981, and 14 July 1981
* being disrespectful in language toward a superior noncommissioned officer on 17 July 1981

4.  Headquarters, 7th Special Forces Group, Fort Bragg, NC, Special Court-Martial (SPCM) Order Number 2, dated 15 May 1981, shows the applicant was found guilty for being disrespectful in language toward a superior noncommissioned officer on 22 April 1981 and for wrongfully communicating a threat to injure a superior noncommissioned officer on 10 April 1981.

5.  On 7 August 1981, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for frequent incidents of a discreditable nature with civil and military authorities.

6.  On 14 August 1981, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation and its effects and the rights available to him, he elected consideration of his case by an administrative separation board.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.

7.  On 3 September 1981, the applicant underwent a mental status evaluation and he was determined to be mentally cleared for separation.

8.  On 1 October 1981, the applicant was notified to appear before an administrative separation board scheduled for 16 October 1981.  However, on
14 October 1981, the applicant waived consideration of his case by an administrative separation board. 

9.  On 19 October 1981, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 
14-33b(1).  He directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  The applicant's DD Form 214 shows he was discharged on 29 October 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) by reason of misconduct, frequent incidents of a discreditable nature with civil/military authorities, with a characterization of service of under other than honorable conditions.  The applicant was credited with completing 5 years,
1 month, and 8 days of total active service.

11.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Parachutist Badge, Army Good Conduct Medal, and the Expert Marksmanship Qualification Badge (M-16). 

12.  On 3 February 1983, the applicant appealed to the ADRB to upgrade his discharge.  On 13 May 1983, the ADRB denied the applicant’s request for a discharge upgrade.  The ADRB determined that the applicant was properly discharged.

13.  There is no evidence and the applicant has not provided any evidence to show he had a nervous condition, he was experiencing family problems, and/or sought counseling to correct his problems.

14.  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, 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  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.

16.  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 argues, in effect, that his discharge should be upgraded because he served honorably during his first enlistment and his indiscipline was based on a nervous condition and family problems.  There is no evidence and the applicant has not provided any evidence to show he had a nervous condition, he was experiencing family problems, and/or he sought counseling to correct his problems.

2.  The available evidence confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.

4.  The applicant's record of service includes three NJP's and a conviction by an SPCM.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, there is no basis to upgrade the applicant's discharge.

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)                                         AR20100012986



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ABCMR Record of Proceedings (cont)                                         AR20100012986



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