IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100022809 


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 to general under honorable conditions.

2.  The applicant states his due process was violated.  He disagreed with some of the lawyers' decisions in his court-martial conviction.  He was told that if he waived his right to appeal, he would receive a general discharge.  He would not sign the Under Other Than Honorable Conditions Discharge Certificate because it was not what they had agreed upon.  The lawyer said he would get it changed and mail it, but that never happened.  He never knew what benefits veterans got or that his discharge could be changed.  He has lived a respectable life for 30 years and wishes to put this incident behind him.

3.  The applicant provides a copy of one page of his notification and election of rights form and his DD Form 214 (Report of Separation 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.  The applicant enlisted in the Regular Army on 13 January 1976.  He completed training as a supply specialist and was stationed at Fort Belvoir, VA.

3.  He was convicted by special court-martial in June 1977 of periods of absence without leave (AWOL) and sentenced to 60 days in confinement.  In June 1978, he was convicted of theft and sentenced to forfeiture of $50.00 per month for 5 months and confinement for 5 months.

4.  He received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice in January, February, and May 1978, and in January, March, April, and May 1979.  In February 1979, he was arrested by civilian authorities for simple assault.

5.  A medical examination found him to be qualified for separation.  During the mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal, and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to participate in board proceedings and he met retention standards.

6.  On 23 July 1979, the company commander notified him that he was initiating separation under the provisions of chapter 14 of Army Regulation 625-200 (Personnel Separations) for frequent incidents of a discreditable nature.  The applicant was informed of his rights and that he could receive an under other than honorable conditions discharge.

7.  The applicant consulted with counsel and waived his rights on 3 August 1979.

8.  The company commander recommended that he be discharged under the provisions of chapter 14, Army Regulation 625-200.  On 9 August 1979, the discharge authority approved the separation recommendation and directed that the applicant be issued an under other than honorable conditions discharge.

9.  Accordingly, the applicant was so discharged on 14 August 1979.  He had completed 3 years, 4 months, and 10 days of creditable active service and had lost a total of 82 days in 11 different incidents.

10.  Army Regulation 635-200 (Personnel Separations), then and currently, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 prescribes policy and procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct [then know as frequent incidents of a discreditable nature], commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7b prescribes 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 states he waived his discharge appeal rights for the promise of a general discharge.

2.  There is no available evidence to show the applicant bargained for a general discharge and, given his record, no reason to believe that anyone would have promised one.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

5.  In view of the foregoing there is no basis for granting the applicant's requested relief.



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)                                         AR20100022809



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ABCMR Record of Proceedings (cont)                                         AR20100022809



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