IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100019001 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he recently went to the Department of Veterans Affairs clinic for medical attention, but he was declined benefits because of his discharge.

3.  The applicant did not provide any additional evidence.

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 records show he enlisted in the Regular Army on 8 March 1977 and held military occupational specialty 64C (Motor Transport Operator).  He was assigned to the 62nd Transportation Company, Fort Bliss, TX.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 5 December 1977 for wrongfully using marijuana.  

4.  On 5 December 1977, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 1 January 1978.

5.  On 2 February 1978, he was convicted by a special court-martial of one specification of being AWOL.  The court sentenced him to confinement at hard labor for 2 months and a forfeiture of $200.00 pay per month for 2 months.  The convening authority approved his sentence on 17 February 1978.

6.  On 4 April 1978, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, by reason of misconduct.

7.  On 7 April 1978, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf.

8.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him and that, as a result of the issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under Federal and State laws.

9.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  The immediate commander stated that the applicant had established a pattern of shirking and unacceptable behavior.  He demonstrated disregard for military authority and continually indicated he had no desire to return to duty.  It was clear his primary objective was to be eliminated from the Army.
10.  Subsequent to a favorable recommendation for discharge by the intermediate commander, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed his service be characterized as under other than honorable conditions.  Accordingly, the applicant was discharged on 19 April 1978.  His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged with a character of service of under other than honorable conditions by reason of misconduct.  This form further shows he completed 11 months and 9 days of creditable active service and he had 63 days of lost time.

11.  On 3 March 1980, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  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 procedures for separating members for misconduct.  Specific categories included 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 could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	a.  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.

	b.  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 displayed a pattern of shirking and unacceptable behavior as evidenced by his NJP for marijuana and his court-martial for AWOL.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The characterization at separation is based on the quality of the Soldier's service.  The quality of service is determined according to standards of acceptable personal conduct and performance of duty for military personnel.  The quality of service is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his indiscipline, his service clearly does not merit an upgrade of his 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)                                         AR20100019001



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ABCMR Record of Proceedings (cont)                                         AR20100019001



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