IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014641 


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

2.  The applicant states, in effect, his commander lied to him by telling him that he would receive a medical discharge.

3.  The applicant provides 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 enlisted in the Regular Army on 27 July 1977.  After completing basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 12C (Bridge Crewman).

3.  A copy of an Army Europe (AE) Form 113 (Recommendation for Elimination under the Provisions of Chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)), dated 24 March 1980, shows the applicant’s commander initiated a separation action for misconduct by reason of frequent incidents of a discreditable nature with civil or military authorities.  This form also shows that six nonjudicial punishment (NJP) actions under Article 15, Uniform Code of Military Justice (UCMJ) were imposed upon the applicant, and that he received at least 40 counseling statements between 27 February 1979 and         5 March 1980.  

4.  The commander noted the reason for initiating this request was due to the applicant's attitude problem toward the Army and the fact that he required constant supervision to complete his duties.  The commander also stated that the applicant was found sleeping during duty hours and that he had a low motivation level and poor military appearance.   The complete chapter 14 packet is not available for review by this Board.

5.  His medical records are not available for review; however, a document dated 19 March 1980 shows the applicant was admitted to the hospital on 8 March 1980 with acute abdominal pain.  An exploratory laparotomy was done which demonstrated he had mesenteric adenitis (inflammation of the lymph nodes in a membrane that attaches the intestines to the abdominal wall).  The appropriate surgery was performed with no signs of further complication.

6.  There is no evidence in the available file which shows the applicant's medical fitness was evaluated by a medical evaluation board (MEB) prior to his separation from the Army.

7.  The applicant's DD Form 214 shows that he was discharged on 29 April 1980, under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct - frequent incidents of a discreditable nature with civil or military authorities.  He was issued an under other than honorable conditions discharge.  He served 2 years, 9 months, and 3 days of total active service with no lost time.

8.  There is no evidence to show that the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

10.  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.

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 has not submitted sufficient evidence to show that he should have been discharged for medical reasons or that his current discharge should be upgraded.

2.  On 8 March 1980, the applicant underwent surgery for mesenteric adenitis with no signs of further complication.  There was no indication that an MEB was needed.  
3.  The applicant’s commander recommended his separation under the provisions of Army Regulation 635-200, chapter 14.  His record contains several instances of NJP under the UCMJ.  It also shows he was counseled on numerous occasions.  Therefore, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  Accordingly, on 29 April 1980 he was discharged for frequent incidents of a discreditable nature with civil or military authorities and he was issued an under other than honorable conditions discharge.

5.  The applicant's complete separation packet is not available for review; however, in the absence of evidence, it is presumed the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20100014641



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ABCMR Record of Proceedings (cont)                                         AR20100014641



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