IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100021804 


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 be upgraded to honorable.

2.  The applicant states, in effect, he was not absent without leave (AWOL).  He came back to the company on time because they promised him 7 more days to make it back.  He is innocent and deserves a little respect.  He left his television and stereo behind because he was never given a chance to take them with him.

3.  The applicant provides:

* letter from the National Personnel Records Center, St. Louis, MO, dated 18 August 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  Having prior active and inactive service in the U.S. Army Reserve, he enlisted in the Regular Army on 26 February 1980 for a period of 4 years.  He completed his training and was awarded military occupational specialties 19E (armor crewman) and 76Y (unit supply specialist).

3.  On 17 August 1983, he entered a plea of guilty to driving while intoxicated in Texas on 30 July 1983.

4.  On 7 November 1983, he was honorably discharged for immediate reenlistment.  He reenlisted on 8 November 1983 for a period of 6 years.

5.  On 11 May 1984, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana, disobeying a lawful order, and destroying military property.

6.  On 21 September 1984, NJP was imposed against the applicant for being AWOL from 8 September 1984 to 16 September 1984.

7.  On 1 October 1984, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12, for misconduct (abuse of illegal drugs and civil conviction).  His unit commander based his recommendation for separation on the applicant's AWOL period, positive urinalysis, and civil conviction for driving while intoxicated.

8.  On 2 October 1984, the applicant consulted with counsel and waived consideration of his case by an administration separation board.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued and he elected not to submit a statement in his own behalf.

9.  On 24 October 1984, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

10.  He was discharged on 29 October 1984 under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  He completed a total of 5 years and 23 days of creditable active service with 8 days of lost time.

11.  On 24 December 1987, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority might direct a general discharge if such was merited by the member's overall record.

13.  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.

14.  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.  His record of service during his last enlistment included two NJPs and 8 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20100021804



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ABCMR Record of Proceedings (cont)                                         AR20100021804



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