IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100013051 


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 an honorable discharge.

2.  The applicant states he was punished too severely for disobeying an order by his first sergeant which violated the applicant's P3 (permanent) profile.

3.  The applicant provides a self-authored statement, copies of three Standard Forms 600 (Chronological Record of Medical Care), and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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                  29 December 1978.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  His record contains a DA Form 3349 (Medical Condition - Physical Profile Record) dated 25 September 1980, wherein it was determined he was medically qualified for duty with limitations.  Section B (Physical Profile) indicates he received a P3 for "U" (upper body).  Section C (Assignment Restrictions, or Geographical, or Climatic Area Limitations) indicates "code G, no lifting over 15 pounds with left arm, no push-ups, no pull-ups."

4.  On 7 November 1980, he signed a statement indicating he understood the permanent physical profile limited his performance and he felt he could not perform the duties required of his MOS.  His commander also signed the form stating he determined the applicant could not perform the duties of his MOS.

5.  His record reveals he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the following:

* On 23 March 1979, wrongly engaging in a fight and unlawfully striking a Soldier with an Army bunk bed 
* On 15 January 1981, unlawfully striking a Soldier with his fist and disobeying a lawful order of a staff sergeant 

6.  The specific facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 20 March 1981 in accordance with Army Regulation 635-200 (Personnel Separations) chapter 10, for conduct triable by court-martial in pay grade E-1 with an under other than honorable conditions character of service.  He completed a total of 2 years, 2 months, and 22 days of creditable active service with no lost time.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  The applicant provides a self-authored statement, dated 17 January 2002, wherein he states the following:

* While on active duty he received a P3 profile which stated no handling of weapons, no field duty, and no lifting over 25 pounds
* His first sergeant gave him an order that would break his profile so he did not obey the order
* He was told he would be court-martialed for disobeying the first sergeant or he could take a chapter 10 discharge which would be upgraded in a couple of years

9.  He also provides copies of three Standard Forms 600, dated 25 August 1980 and 25 September 1980, indicating he was treated for injuries received in an automobile accident, and a copy of his DD Form 214.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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, 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's contention his under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered.

2.  The applicant contends he was punished too severely for disobeying his first sergeant; however, his available record does not support this contention.

3.  His record of service shows he received NJP on two occasions for unlawfully striking a Soldier and on one occasion for disobeying a lawful order of a staff sergeant. 

4.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

5.  In the absence of evidence to the contrary it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable 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.



      _______ _   _______   ___
               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)                                         AR20100013051





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ABCMR Record of Proceedings (cont)                                         AR20100013051



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