IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100017399 


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 that the characterization of his discharge be changed 
to a honorable or to a general discharge.

2.  The applicant states he does not believe the record to be in error, just unjust and he requests a records review of his discharge based on his military personnel file and additional documentation submitted.

3.  The applicant provides three character reference letters and a copy of his DD Form 214 (Report of Separation 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.  The applicant's record shows he enlisted in the Regular Army on 10 November 1976 for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty 76D (Materiel Supplyman).  Records further show the highest rank/grade he attained was private first class (PFC)/E-3.

3.  The applicant's service record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for the offenses indicated:

a. 14 August 1977, for stealing a German warning light, of a value of $16.00,  the property of Germany

b. 2 March 1978, for stealing a utility truck, of a value of about $7,236.00,   the property of the United States Army on or about 2 March 1978 

c.	14 March 1978, for stealing a cargo truck, of a value of about $6,641.00,  the property of the United States Army on or about 14 March 1978

d.	1 February 1978, for committing an indecent assault on a female civilian   

4.  On 28 June 1978, the unit commander notified the applicant he was initiating separation action on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-33(a), and (b) for misconduct.  The unit commander also cited the applicant's sexual perversion, frequent incidents of a discreditable nature with military and civil authorities, and habitual shirking as the reasons for his recommendation.

5.  On 7 July 1978, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action, its effects and of the rights available to him.  He waived his rights to be considered by an administrative separation board, personal appearance before a board of officers, consulting counsel, and representation by military counsel.  The applicant elected not to make a statement in his own behalf and acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge.  


6.  On 10 August 1978, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-38e, for misconduct and directed that he be discharged with an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 30 August 1978, the applicant was discharged accordingly.  The
DD Form 214 he was issued shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-33a(1), by reason of misconduct.  He completed a total of 1 year, 9 months, and 21 days of creditable active service.

8.  The applicant provided three character reference letters written by family members and his neighbor, who described him as caring, loving and who has put his family needs before his own.

9.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within that board's 15-year statute of limitations.

10.  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.

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's request that his characterization of his discharge should be upgraded to an honorable or general discharge was carefully considered; and found to be insufficient in merit.

2.  The evidence of record confirms the applicant's unit commander notified him of the contemplated separation action and his rights to consult with legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's acceptance of NJP actions on four separate occasions clearly diminished the overall quality of his service far below that meriting an honorable or a general discharge.  Therefore, the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  In view of the foregoing, 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)                                         AR20100017399





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ABCMR Record of Proceedings (cont)                                         AR20100017399



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