BOARD DATE:	12 January 2011  

		DOCKET NUMBER:  AR20100018174 


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 general discharge to an honorable discharge.  

2.  He does not submit any contentions.

3.  He does not provide any additional documents 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.  After having had prior service, the applicant enlisted in the Regular Army on 17 January 1979 and he continued to serve on active duty through one reenlistment on 19 July 1982.  

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 15 February 1983 for two specifications of failing to obey a lawful order.  

4.  His service record indicates he received adverse counseling in regard to his indebtedness to the phone company and two incidents of writing bad checks.

5.  His service record also shows he was arrested by civil authorities for not having a state driver’s license.

6.  On 5 July 1983, the company commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b for a pattern of misconduct.  The company commander cited the basis for separation action as a pattern of misconduct of discreditable involvement with civil and military authorities.  He was advised of his rights.  

7.  He acknowledged notification of the separation action, consulted with legal counsel, requested consideration of his case by a board of officers, and he did not submit statements in his own behalf.  

8.  The separation authority denied administrative separation board procedures, waived rehabilitation requirements, and approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct - pattern of misconduct with service characterized as general under honorable discharge.

9.  He was discharged accordingly on 22 July 1983 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct.  He completed 4 years, 6 months, and 6 days active service during the period under review.

10.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  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.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service record shows he received one Article 15 for two specifications of failing to obey a lawful order.  

2.  The evidence of record shows he received adverse counseling for an outstanding phone bill and two incidents of writing bad checks.  His service record also shows he was arrested by civil authorities for not having a state driver’s license.   

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  An under other than honorable conditions discharge was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that his overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge and characterized his service as general under honorable conditions.  He has not presented sufficient evidence which warrants changing his general discharge 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 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)                                         AR20100018174



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ABCMR Record of Proceedings (cont)                                         AR20100018174



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