IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100015640 


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 of his under other than honorable conditions discharge to a general or honorable discharge.

2.  The applicant states that he would like to clear his name to be eligible for government employment, to buy a home, and to send his children to college.  He states he was a good Soldier though he does not remember going absent without leave (AWOL) because he was taking care of his wife.  At the time, he states he was young and 17 years old when he enlisted.  He states he is now a college graduate and has been married for 18 years with two children.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a personal résumé, and his college transcripts in support of his 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.  The applicant was born on 17 September 1963.  He enlisted in the Regular Army on 10 June 1981 at the age of 17 years, 8 months and 25 days.  He completed his initial entry training and he was awarded military occupational specialty 94B (Food Service Specialist).  

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 20 August to 21 August 1982 and again from 6 October to 8 October 1982.  In addition, he accepted NJP for wrongful possession of marijuana.  

4.  On 12 October 1983, he was convicted by a summary court-martial of failure to repair and breaking restriction.  His sentence consisted of confinement at hard labor for 20 days and forfeiture of $100 pay per month for 1 month.  

5.  On 21 November 1983, he was evaluated by a Medical Service Corps officer who stated he had no overt psychopathology or suicidal ideation and that his potential for consistent and productive service appeared very limited.  This officer cleared him for administrative separation action as determined by the applicant’s chain of command.

6.  The applicant’s commander notified him that action was being initiated to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  The justification for initiating this separation action was his acceptance of three NJPs and conviction by a summary court-martial.  The applicant acknowledged receipt of this separation notification.

7.  The commander advised him of his right to be represented by counsel, to submit written statements in his own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  

8.  On 2 December 1983, he consulted with counsel.  He waived his right to a board of officers and elected not to submit personal statements on his own behalf.  He indicated he understood that he could expect to encounter prejudice in civilian life with a general discharge under honorable conditions or an under other than honorable conditions discharge.  He further acknowledged he could apply to the Army Discharge Review Board or this Board for an upgrade of his discharge and that he would be ineligible to enlist in the U.S. Army for a 2-year period after his separation.

9.  The applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  

10.  The approval authority approved the applicant's discharge from the service with the issuance of an under other than honorable conditions discharge on 9 December 1983.  The approval authority denied the applicant a rehabilitative transfer.
 
11.  On 13 December 1983, the applicant was discharged.  He was issued a DD Form 214 confirming he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct with an under other than honorable conditions discharge.  He had completed 2 years, 5 months, and 16 days of creditable active service with time lost from 6 October 1982 to 7 October 1982 and from 12 October 1983 to 27 October 1983.  

12.  There is no evidence to show the applicant applied to the Army Discharge Review Board within its established 15-year statute of limitations for a discharge upgrade.

13.  In support of his application, he provided his college transcript from a junior college showing he earned 120 credit hours for electronic technology with a cumulative grade point average of 3.458.  His civilian résumé shows he attended two state universities and that he has been employed since 1993.

14.  References:

	a.  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.
	b.  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.

	c.  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 company commander initiated separation action against him for a pattern of misconduct including conviction by a summary court-martial and his acceptance of NJP for two periods of AWOL and possession of marijuana.   

2.  The applicant contends that he was 17 years old when he entered the service and that he had responsibility for his wife.  He contends that his youth and his responsibilities for his wife contributed to his actions. 

3.  The applicant's contention that his youth and family responsibilities contributed to his misconduct are not accepted for he had completed his initial entry training requirements and he was instructed in the Uniform Code of Military Justice and acceptable standards of military and personal conduct expected of a Soldier.  There are other administrative remedies available to Soldiers should they experience personal difficulties that require them to care for a family member and miss work.  The applicant failed to provide evidence showing he sought assistance from his chain of command to resolve his personal issues.  

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

5.  In view of the above, there is insufficient evidence to upgrade the applicant's under other than honorable conditions 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.




      _______ _   _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)                                         AR20100015640



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ABCMR Record of Proceedings (cont)                                         AR20100015640



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