IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100018514 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  He states, in effect: 

   a.  he served honorably 3 years and reenlisted for 3 more years;

   b.  his problems started when his vehicle was sent to the shop for repairs and his platoon sergeant said he should stay "lost" because there was nothing for him to do in the motor pool.  The battalion commander caught him at the Post Exchange during duty hours; he received an Article 15, and he was reduced to private first class/E-3.  Later he was reduced to private/E-2 as a result of an Article 15;

   c.  he was told he was being discharged and he would get to keep his benefits;

   d.  he was treated at the Rivera Beach Florida Veterans Clinic from October 1982 to 1984; therefore, he thought his discharge had been automatically upgraded after 6 months.  However, on 25 May 2009, he was denied medical services because he had an under other than honorable conditions discharge; and  
   
   e.  he believes his discharge should be upgraded so that his veteran's benefits can be restored.
3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two character reference letters.

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 on 5 July 1978.

3.  He received nonjudicial punishment under Article 15, Uniform Code for Military Justice on three occasions for the following reasons:

   a.  five offenses of failure to go at the time prescribed to his appointed place of duty; and

   b.  two offenses of failure to a obey a lawful order from a noncommissioned officer.

4.  His record contains evidence which shows the following summary of facts concerning discharge:

   a.  in September 1982 the applicant was notified of the company commander's intent to recommend that he be discharge under the provisions of   Army Regulation 635-200 (Personnel Separations), paragraph 14-33b(2), due to misconduct, an established pattern of shirking;

   b.  on 2 September 1982, he was afforded counsel, waived his appearance before a board of officers, and declined to submit statements in his own behalf;
   
   c.  on 2 September 1982, the company commander recommended separation and the intermediate commander concurred;
   
   d.  on 24 September 1982, the Staff Judge Advocate reviewed the discharge proceedings and found them to be legally sufficient;
   
   e.  on 24 September 1982, the discharge authority approved the discharge action with an under other than honorable conditions discharge; and
   
   f.  on 1 October 1982, he was discharged.  His DD Form 214 shows the following:

   (1)  item 12c (Net Active Service this Period) shows "4 years, 2 months, and 27 days;"
   
   (2)  item 25 (Separation Authority) shows "Army Regulation 635-200, paragraph 14-33b(2)";

   (3)  item 26 (Separation Code) shows "JKJ";

   (4)  item 27 (Reenlistment Code) shows "RE-3 and RE-3C"; and
   
   (5)  item 28 (Narrative Reason for Separation) shows "Misconduct – an established pattern of shirking."

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  He provided two character reference letters, which state he is responsible, dependable, and takes his job seriously.

7.  Army Regulation 635-200 (Enlisted Separations), 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.

8.  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 evidence of record shows the applicant had three Article 15's and he was separated with an under other than honorable conditions discharge for misconduct - an established pattern for shirking.  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 a general discharge.

2.  His post-service conduct is noteworthy; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone.  There is nothing in the applicant's record and he has provided nothing to indicate he was told his discharge would be automatically upgraded or that he would be allowed to keep his benefits.

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)                                         AR20100018514



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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