IN THE CASE OF:	  

		BOARD DATE:	    10 February 2011

		DOCKET NUMBER:  AR20100019023 


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

2.  He states he is requesting his discharge be upgraded so he can seek the medical attention he needs.  The majority of the acts of misconduct he was accused of were small in nature.  Of the 15 acts, 7 were for failing inspections, ranging from dust on his bed rails to no boots being displayed.  He was even counseled during an in-ranks inspection on needing a haircut.  None of these things, to him, constituted a UOTHC discharge.  He was also counseled for a security violation in which he had left his locker unsecured.  Once again, that did not constitute a UOTHC discharge.  The one thing he got in trouble for that he will admit he did wrong was the possession of marijuana.

3.  He also states he was assaulted on 14 August 1980 in the barracks.  Since that assault he has had numerous medical complications.  He had a permanent physical profile and on occasion needed to go to sick call.  He was accused of malingering.  He believes he was never given a fair chance after the attack by one of his fellow service members, due to his medical limitations.  He requested numerous times to be given a general discharge and was denied.  Even during the board proceedings, his counsel asked that he be given a general discharge so that if necessary, he could obtain medical care at a Department of Veterans Affairs (VA) facility if needed in the future.

4.  He provides:

* DA Form 2-1 (Personnel Qualification Record)
* military service and medical records
* discharge package
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two UOTHC Discharge Certificates
* Member of Congress business card

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 military records show he enlisted in the U.S. Army Reserve Delayed Entry Program on 17 July 1979.  He enlisted in the Regular Army in pay grade E-1 on 30 October 1979 for 4 years.  He completed training and was awarded military occupational specialty 11B (Infantryman).

3.  On 3 April 1980, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana on 17 March 1980.

4.  He was advanced to pay grade E-3 on 21 July 1980.

5.  A DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), dated 19 November 1980, shows he was assaulted in the barracks on 14 August 1980 and sustained a fractured jaw.  He was also diagnosed with an ureteropelvic junction obstruction of the left kidney.  He underwent surgery for repair of his jaw on 21 August 1980 and was placed on convalescent leave.  On 30 September 1980, he underwent a cystoscopy, left ureteropyeloplasty, and left retrograde ureterogram.  He was returned to duty on 19 November 1980.

6.  On 22 October 1980, a Soldier was convicted by special court-martial of breaking the applicant's jaw on 14 August 1980.  The individual was sentenced to 6 months of hard labor and a forfeiture of pay for 6 months.

7.  On 17 June 1981, the applicant was convicted by special court-martial of one specification each of wrongfully possessing and transferring marijuana on 17 October 1980 and one specification of absenting himself from his unit from 29 January 1981 to 13 March 1981.

8.  On 5 July 1981, he was placed on a temporary physical profile for having blood in his urine during heavy activity.

9.  On 6 July 1981, he accepted punishment under Article 15, UCMJ, for failing to obey a written order on 3 July 1981.

10.  On 3 August 1981, he was placed on a temporary physical profile for exercise hematuria.  His assignment limitations were:  no crawling, stooping, running, jumping, marching, or standing for more than 10 minutes; no mandatory strenuous physical activity; no lifting more than 10 pounds; and no pull-ups, push-ups, or overhead work.

11.  On 3 August 1981, the applicant's company commander requested that the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-33, for misconduct due to frequent incidents of a discreditable nature.  The company commander stated the applicant's records reflected his highest grade held was E-3, he had one court-martial and one nonjudicial punishment under Article 15.  The applicant was sent to the brigade for the purpose of receiving correctional training and treatment necessary; however, the applicant's actions since precluded accomplishment of the objective as evidenced by the resumption of behavior, attitude, and ability.  The applicant demonstrated little desire for returning to duty.

12.  On 4 August 1981, the applicant acknowledged through counsel the proposed separation action.  He also acknowledged the effects of issuance of a general discharge or a discharge UOTHC.  He further acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws. 
He elected not to submit a statement in his own behalf.

13.  On 15 September 1981, he accepted nonjudicial punishment under Article 15, UCMJ, for absenting himself from his appointed place of duty from 13 to 14 September 1981.

14.  On 18 September 1981, a board of officers recommended that the applicant be discharged for misconduct and issued a UOTHC discharge.  During the proceedings the applicant stated that he was willing to go back to training, but would prefer a general discharge for medical reasons.  His doctor stated he didn't qualify for a medical discharge because his conditions might improve.

15.  On 1 and 14 October 1981, the applicant's battalion commander requested the applicant's suspended discharge be vacated due to the following acts of misconduct from 21 September 1981 to 6 October 1981:  being disrespectful to a noncommissioned officer/violation in an off limits area, malingering/shirking, security violation, leaving the unit area without permission, requesting to be discharged, commander's recommendation for vacation of suspended chapter 14 proceedings, behavioral rating scale/unsatisfactory, unit commander's recommendation, four failed barracks inspections, disobeying lawful orders/
dereliction of duty, failing to repair, being disrespectful, voluntarily breaking physical profile, failing in-ranks inspection, and two barracks inspection deficiencies.

16.  On 1 October 1981, the applicant acknowledged notification to request vacation of his suspended discharge due to additional acts of misconduct.  He elected not to submit a statement in his own behalf.

17.  On 19 October 1981, the appropriate separation authority vacated the applicant's suspended discharge and directed that his discharge be executed.

18.  He was discharged in pay grade E-1 on 23 October 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities.  His character of service was UOTHC.  He was credited with completion of 1 year, 8 months, and 20 days of net service and lost time from 29 January 1981 to 12 March 1981 and from 4 May 1981 to 23 June 1981.

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

20.  Army Regulation 635-200, paragraph 14-33b, then in effect, established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave.  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 UOTHC discharge was normally considered appropriate.

21.  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.

22.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was attacked in the barracks and sustained a broken jaw on 14 August 1980.  He underwent surgery and was returned to duty on 19 November 1980.  The individual responsible for the attack was convicted by a special court-martial.  In July 1981, the applicant was placed on a temporary physical profile for blood in his urine and underwent treatment.  During his period of service he received numerous counselings, was convicted by court-marital of possessing and transferring marijuana, and accepted one nonjudicial punishment under Article 15.

2.  On 1 August 1981, his company commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 
14-33, for misconduct due to frequent incidents of a discreditable nature.  The company commander stated that despite transferring the applicant to the brigade for correctional training, the applicant's actions on return precluded the accomplishment of the objective.

3.  On 18 September 1981, a board of officers recommended that he be discharged for misconduct.  On 1 October 1981, he was notified of the vacation of his suspended discharge due to additional acts of misconduct.  On 19 October 1981, the appropriate separation authority vacated the suspended discharge and directed its execution.  He was discharged accordingly on 23 October 1981.

4.  He has not shown his discharge was unjust or his medical conditions prevented him from completing his enlistment.  He provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant's misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

6.  His desire to have his discharge upgraded so he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for medical or other benefits administered by the VA.

7.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100019023



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ABCMR Record of Proceedings (cont)                                         AR20100019023



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