IN THE CASE OF:	

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100013504 


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

2.  The applicant states he hurt his ankle in basic training, had surgery, and did the best he could but was told he was a malingerer.  He wanted to be a good troop but did not "see eye to eye" with the first sergeant.

3.  The applicant provides a self-authored statement, two statements of support, a North Carolina state criminal record search document, 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 was born on 19 November 1955.  On          25 November 1977, at the age of 22, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2.

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

* On 30 March 1978, wrongful possession of marijuana
* On 13 November 1978, absent without leave (AWOL) and disobeying a lawful order
* On 31 October 1979, AWOL and threatening a noncommissioned officer (NCO)

4.  On 25 June 1979, he was convicted by a special court-martial of unlawfully striking another Soldier by choking him and hitting the Soldier's head against a wall.

5.  On 25 October 1979, he was notified by his commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for acts of misconduct.

6.  On 25 October 1979, he acknowledged notification of his proposed discharge from the Army.  On 30 October 1979, he consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of an other than honorable discharge; and of the procedures and rights that were available to him.  He further acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

7.  On 26 November 1979, his chain of command recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-33b.

8.  On 15 January 1980, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-33b and directed issuance of an Other Than Honorable Discharge Certificate.  On 23 January 1980, he was discharged accordingly.  

9.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service.  He completed a total of 2 years and 19 days of creditable active service with 41 days of lost time.

10.  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.  

11.  In a self-authored statement the applicant states, in effect, the following:

* He injured his ankle during basic training and had surgery
* He complained about ankle pain at his first duty assignment and was labeled a malingerer which caused trouble with his first sergeant. 
* He was young, bull-headed, and drank too much which led to a court-martial
* He had a drug and alcohol problem since his discharge but has been clean and sober since 19 September 2003
* He is married, owns his own business, and is becoming a productive member of society

12.  Two statements of support, dated February 2010, state, in effect, he is selfless, caring, and dedicated to serving his community.  He also provides an undated North Carolina criminal record search indicating no criminal records were found.

13.  Army Regulation 635-200 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.

14.  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.
15.  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 contends he was labeled a malingerer causing problems with his first sergeant; however, his available record does not support this contention.

2.  The evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the special court-martial he received for striking another Soldier and the NJP he received on three occasions for possession of illegal drugs, AWOL, disobeying a lawful order, and threatening an NCO.  Accordingly, his immediate commander initiated separation action against him.

3.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge.

4.  He contends that he was young and bull-headed at the time of his service.  Records show he was almost 23 years of age at the time of his first offense.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

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)                                         AR20100013504





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013504



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1