IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013828 


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.

2.  He states he has been a law-abiding citizen since he was discharged from the Army.

3.  He provides two DD Forms 214 (Report of Separation from the Army) and one DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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.  He enlisted in the Regular Army (RA) and served honorably during two periods of enlistment from 1 August 1972 to 26 April 1977.

3.  On 27 April 1979, he again enlisted in the RA.

4.  His record contains a copy of Headquarters, 8th Infantry Division, General Court-Martial Order Number 17, dated 16 March 1982, which documents the following charges, pleas, and findings:

	a.  Charge I, Article 121, Uniform Code of Military Justice (UCMJ), specification:  wrongfully appropriate personal property valued at $1,340.00 on or about 24 July1981.  Plea:  Guilty.  Finding:  Guilty.
		
	b.  Charge II, Article 134, UCMJ, specification:  wrongfully have in his possession 17.59 grams of marijuana in hashish form on or about 4 January 1982.  Plea:  Guilty.  Finding:  Guilty.

5.  On 18 February 1982, the sentence was adjudged.

6.  He received nonjudicial punishment under Article 15, UCMJ, for the following offenses:

* 20 April 1982 - wrongfully have in his possession .5 grams of marijuana
* 29 April 1982 - derelict in the performance of his duties

7.  His record contains evidence which shows the following:

* discharge authority:  Army Regulation 635-200 (Personnel Separations), paragraph 14-12b(1)
* narrative reason:  misconduct
* summary of facts concerning discharge:

* 24 June 1982 - notified of intent to recommend separation for unfitness (frequent acts) and informed of available rights
* 24 June 1982 - company commander recommended separation and intermediate commander recommended approval
* 30 June 1982 - separation physical completed
* 14 July 1982 - was afforded counsel, waived appearance before board of officers, declined to submit statement
* 15 July 1982 - Staff Judge Advocate reviewed discharge proceedings and found them legally sufficient
* 
20 July1982 - discharge authority approved discharge with an under other than honorable conditions discharge
* 23 July1982 - He was discharged

8.  His DD Form 214, dated 23 July1982, shows the following:

* item 12c (Net Active Service this Period) - "3 years, 1 month, and 11 days"
* item 12d (Total Prior Active Service) - "4 years, 8 months, and 29 days"
* item 25 (Separation Authority) - "Army Regulation 635-200, paragraph 14-33b(1)"
* item 26 (Separation Code) - "JKA"
* item 27 (Reenlistment Code) - "RE-3b"
* item 28 (Narrative Reason for Separation) - frequent involvement in incidents of a discreditable nature with civil or military authorities"
* item 29 (Dates of Time Lost During this Period) - "820218-820325"

9.  On 3 June 1983, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

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:

The evidence of record shows the applicant had one general court-martial, two Article 15's, and was separated with an under other than honorable conditions discharge for a pattern of misconduct - frequent incidents of discreditable nature with civil or military authorities.  Records also show he had 37 days of lost time.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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 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)                                         AR20100013828



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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