IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100013257 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his Under Other Than Honorable Conditions Discharge.

2.  The applicant states, in effect, the allotted time has passed for his discharge to be upgraded.  

3.  The applicant has not provided any documentation in support of his request.  

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 serving 15 days of prior inactive service in the Delayed Entry Program, the applicant enlisted in the Regular Army on 31 July 1979.  He completed the training requirements and he was awarded military occupational specialty 36K (Wireman Maintenance Specialist).   

3.  On 27 March 1981, the applicant was convicted by summary court-martial of willfully and wrongfully damaging a privately owned vehicle belonging to sergeant M______.  

4.  On 27 May 1981, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from his battalion commander not to have more than $50.00 in his possession at any time.  

5.  On 17 June 1981, the applicant was recommended for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), paragraph 
14-33b(1), for misconduct due to frequent incidents of a discreditable nature.  This recommendation stated the applicant's conduct and efficiency was unsatisfactory.  It further stated the applicant received considerable counseling by the leadership team, unit cadre, and professional staff agencies, but he did not respond favorably to his counseling or to the duties given him.  Further rehabilitation requirements were waived pursuant to paragraph 13-8, Army Regulation 635-200.  

6.  On 23 June 1981, the applicant consulted with counsel in regard to separation under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to frequent incidents of a discreditable nature.  He requested that his case be considered by a board of officers and a personal appearance.  He elected not to submit a statement.

7.  The hearing adjourned on 21 July 1981.  The board found the applicant’s service to be unsatisfactory due to his conviction by summary court-martial, receipt of NJP, and numerous discreditable incidents.  He was recommended for elimination from the Army for misconduct with an Under Other Than Honorable Conditions Discharge Certificate. 

8.  On 12 August 1981, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 
14-33b(1), and that he be furnished an Under Other Than Honorable Conditions Discharge Certificate. 

9.  Accordingly, the applicant was discharged on 14 August 1981.  He had served 1 year, 11 months, and 20 days of total active service and he had 24 days of lost time due to being in confinement.
10.  There is no evidence to show that the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board's 15-year statute of limitations.  

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33b of the regulation established the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  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 was normally considered appropriate.

12.  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.  

13.  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.

14.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge were either improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Under Other Than Honorable Conditions Discharge should be upgraded.  The applicant’s contentions have been noted; however, they do not sufficiently support his request and do not serve as mitigation in his case.

2.  The applicant’s commander recommended discharge under the provisions of paragraph 14-33b of Army Regulation 635-200 due to numerous discreditable incidents.  It is noted that after several counseling sessions, the applicant failed to conduct himself in a suitable military manner and he showed little evidence of attempting to comply with rules and regulations. 

3.  The applicant’s record of service shows various incidents of misconduct, NJP, a summary court-martial, and 24 days of lost time due to confinement.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  The Army does not have nor has it ever had a policy that provides for the upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects his overall record of service.  As a result, 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)                                         AR20100013257



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ABCMR Record of Proceedings (cont)                                         AR20100013257



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