BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100018957 


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 an upgrade of his under honorable conditions discharge.

2.  He states:

* He was injured in a motorcycle accident in July 1982 which impacted on his abilities to perform his military duties
* After the accident he was not the same and that is the reason he went absent without leave (AWOL)
* Outside of this event, his service was honorable as evidenced by his medals and service record

3.  He provides his DD Form 214 (Certificate of Release or Discharge 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.  He enlisted in the Regular Army on 11 April 1979.  The highest grade he attained was sergeant/E-5.  However, at the time of his separation he held the grade of private/E-1.

3.  His record reveals his disciplinary history which includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ) for committing the following offenses in violation of articles of the UCMJ:

* Failure to go to appointed place of duty at the prescribed time
* Three separate occasions of AWOL

4.  His record reveals a disciplinary history that includes a DA Form 4856 (General Counseling Form) documenting an adverse counseling session for three occasions of AWOL.

5.  On 29 November 1983, the company commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14 (Separation for Misconduct), paragraph 14-12, for repeated AWOLs and demonstrated lack of self-discipline.  The applicant was also advised of his rights.

6.  On the same date, he consulted with legal counsel and acknowledged he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He states in his personal statement that he:

* Served 4 years in the military and except for two AWOLs has served creditably 
* Received numerous commendations and other plaudits from his superiors
* Has done a good job
* Requests that he receive a general under honorable conditions discharge

7.  He acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.  The applicant and his legal counsel each signed the document.


8.  On 12 December 1983, the separation authority approved the recommendation for separation and directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct.  The separation authority directed the applicant be issued a general under honorable conditions discharge and that he not be transferred to the Individual Ready Reserve of the U.S. Army Reserve.

9.  Accordingly, he was discharged on 16 December 1983.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under honorable conditions based upon the provisions of Army Regulation 635-200, paragraph 14-12b, a pattern of misconduct with the separation code "JKM."  He completed 4 years, 7 months, and 25 days of net active service.  Item 13 (Decorations, Medals, Citations, and Campaign Ribbons Awarded or Authorized) show he was awarded the Army service Ribbon, Overseas Service Ribbon, Missile Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Grenade Bar.

10.  His military personnel records do not show any acts of valor, significant achievement, or service warranting special recognition.

11.  His military personnel records do no show that he was involved in or treated for injuries sustained during a motorcycle accident.

12.  There is no evidence that he applied to the ADRB for upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time of his separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

14.  Army Regulation 635-200 states action will be taken to separate a Soldier 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 an honorable discharge or a general discharge if such is merited by the Soldier's overall record.

15.  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.

DISCUSSION AND CONCLUSIONS:

1. There is no evidence nor did he submit any evidence that supports his claim of being in a motorcycle accident during his active duty service.

2.  The evidence of record shows he had three Article 15's and was separated with a general under honorable conditions discharge for a pattern of misconduct. Records also show he had 17 days of lost time.  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 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 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)                                         AR20100018957



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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