IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100020669 


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 other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 6 years of service.  He is now an honorable citizen with a steady job for the past 27 years.  He is also a deacon at his church and has been married for 32 years with five children.

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 initially enlisted in the Regular Army (RA) for a period of 4 years on 18 July 1976.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 75B (Personnel Administration Specialist).

3.  He was honorably discharged on 26 September 1979 for the purpose of immediate reenlistment and he executed a 3-year reenlistment on 27 September 1979.  The highest rank/grade he attained during his service was specialist five (SP5)/E-5.

4.  His records further show he served in Germany from 31 January 1979 to 26 January 1981.  He was awarded the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain:

	a.  DA Form 268 (Report For Suspension of favorable Personnel Actions (FLAG)), dated 1 March 1982, that shows an initial flag was initiated against him as he was pending court-martial charges for possession, transfer, and sale of marijuana. 

	b.  DA Form 268, also dated 1 March 1982, which shows he was convicted in civil court and sentenced to confinement for 3 years (2-year probation).

	c.  Orders 279-347, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, on 6 October 1982, reducing him from SP5/E-5 to the lowest enlisted grade. 

	d.  Orders 279-348, also issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, on 6 October 1982, ordering his discharge from the Army, effective 14 October 1982. 

	e.  A properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 14 October 1982 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct -conviction by civil court in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.  This form also shows he completed a total of 5 years, 10 months, and 24 days of creditable active service and he had lost time from 9 April 1982 to 8 August 1982.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  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 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 3-7a, 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. 

9.  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 applicant contends his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 14 October 1982 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-conviction by civil offense with an under other than honorable conditions discharge.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

4.  His post service personal and professional achievements are noted.  However, on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable condition nor 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 that 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)                                         AR20100020669



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ABCMR Record of Proceedings (cont)                                         AR20100020669



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