IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100019687 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states the record is incomplete because his misconduct was the product of his being denied his enlistment guarantee which led to him being discharged without consideration of his conduct or efficiency record.  He further states that because he was in the Army for less than 180 days he should have received a "no fault" discharge, yet he has been prejudiced by the entry on his DD Form 214 (Certificate of Release or Discharge from Active Duty) that reads under other than honorable conditions discharge.

3.  The applicant provides a copy of his DD Form 214.

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 was granted a waiver of eight pre-service offenses and enlisted in the Regular Army with a guarantee of assignment to the 9th Infantry Division upon completion of training.  He entered active duty on 29 January 1980 and he was absent without leave (AWOL) on 9 February 1980.

3.  On 29 April 1980, the applicant pled guilty to the charge of Burglary Second Degree-Class "C" Felony, in the Circuit Court of Jackson County, MO.  He was sentenced to be confined for 3 years.  The sentence was suspended and he was placed on probation for 3 years.

4.  On 5 May 1980, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12b, for Misconduct - (Conviction by a Civil Court).  The applicant was advised of his rights and of the separation procedures involved.

	a.  He consulted with counsel and waived his rights.

	b.  He submitted a statement in his own behalf in which he stated, in effect, that he couldn't adapt to the service.  He complained of severe head pains and stated he wasn't allowed to go to the hospital.  He didn't disagree with the type of discharge, but asked to be able to go home under honorable conditions.

5.  The separation authority approved the separation action and directed that the applicant be discharged with an under other than honorable conditions discharge.

6.  The applicant's DD Form 214 shows he was discharged on 14 July 1980.  The reason for separation erroneously indicates he was separated for "frequent incidents of a discreditable nature with civil or military authorities."  He completed 2 months and 26 days of net active service.  

7.  The Army Discharge Review Board denied the applicant's request to grant him a general discharge.

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

	a.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions 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.

	b.  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.

	c.  Paragraph 3-7b provides that a general, under honorable conditions discharge 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.

	d.  Paragraph 3-9 provides for an entry-level separation.  A separation will be defined as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and warranted by the circumstances of the case.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days of active service.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded as the record is incomplete because his misconduct was the product of his being denied his enlistment guarantee. 

2.  His enlistment guarantee was to be effective upon the completion of training and has no relevance to his discharge.


3.  The evidence of record shows the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate and equitable.

4.  An entry level separation was not appropriate since the applicant was convicted by a civil court for burglary.  An entry level discharge is appropriate for those who are unable to perform their duties or cannot adapt to military service.  The regulation does not require all individuals with less than 180 days to receive an entry-level discharge.  Regulatory guidance also indicates that an entry-level separation with service uncharacterized is inappropriate when characterization under other than honorable conditions is authorized under the reason for separation and warranted by the circumstances of the case.

5.  In view of the foregoing, it is concluded that the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's overall quality of service was not satisfactory and, therefore, he is not entitled to a general discharge under honorable conditions.

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)                                         AR20100016177



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019687



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1