IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100023751


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:

	a.  he was an exemplary Soldier and he received numerous awards for his achievements as a postal NCO;

   b.  during a vulnerable period while separated from his wife, he committed adultery; and

	c.  none of his actions occurred on active duty or affected his mission, but the offense resulted in the under other than honorable conditions discharge he received.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 23 July 1970 and 6 April 1984
* three Certificates of Achievement
* his promotion orders
* three Letters of Appreciation
* a Letter of Merit in Korean Service

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 26 May 1969 for a period of
4 years.  He was honorably discharged on 23 July 1973 at the expiration of his term of service.  The DD Form 214 issued at that time shows he completed
4 years, 1 month, and 28 days of total active service.  His DD Form 214 also shows he was retained in service for 58 days for the convenience of the Government.

3.  On 24 July 1973, the applicant reenlisted in the RA.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in
item 18 (Appointments and Reductions), he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 3 June 1981, and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to the rank/grade of specialist four (SP4)/E-4 on 24 February 1984.

5.  The applicant’s record reveals a disciplinary history that shows he was issued a letter of reprimand on 10 January 1984 for his pattern of bad check writing.

6.  A DA Form 2-2 (Record of Court-Martial Conviction) shows a general court-martial (GCM) found the applicant guilty of adultery and twice making a false official statement on 19 January 1984.  He was sentenced to a reduction to SP4/E-4.

7.  On 24 January 1984, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct.  The commander indicated the applicant's unsatisfactory performance as evidenced by his patterns of misconduct consisting of discreditable involvement with military and civilian authorities and his GCM as the basis for his separation action.  The commander informed the applicant of his right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board, to be represented by either or both military and civilian counsel, to waive his rights, and/or to submit request for conditional waivers of any rights.  The commander required him to undergo a complete medical examination and mental status evaluation.  

8.  On 30 January 1984, the applicant completed his election of rights by requesting consideration of and personal appearance before an administrative separation board (board of officers) and representation by counsel.  He declined to submit any statements in his own behalf.

9.  A DA Form 3975 (Military Police Report), dated 9 February 1984, shows the applicant was apprehended by military police for impersonating an official.

10.  On 28 February 1984, the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, that he was fully alert and oriented, that he had an unremarkable mood, that his thinking process was clear, and that his memory was good.  The examiner also determined the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

11.  On an unknown date, an administrative separation board was appointed to determine the appropriate disposition of the applicant’s elimination under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b and
14-12c.  After considering all of the evidence before it, the administrative separation board recommended the applicant be separated from the Army with an under other than honorable conditions discharge based on his established pattern of misconduct and for serious misconduct.

12.  On 3 April 1984, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 6 April 1984, the applicant was discharged accordingly.

13.  The DD Form 214 issued to the applicant upon his discharge confirms he was discharged under the provisions of Army Regulation 635-200, paragraph
14-12c.  It also shows he completed 15 years, 7 months, and 17 days of creditable active service and that he held the rank/grade of private (PV1)/E-1 at the time of his discharge.
14.  On 21 January 1987, the Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and denied relief.  However, in making its determination, the ADRB noted the reason and authority for the applicant's discharge found in Army Regulation 635-200 should be changed from paragraph 14-12c, misconduct - commission of a serious offense to paragraph 14-12b, misconduct - pattern of misconduct.

15.  On 21 January 1987, a DD Form 215 (Correction to DD Form 214) was issued to correct the following entries on the applicant's 2 April 1984 DD Form 214 based on the ADRB's determination:

* Item 25 (Narrative Reason for Separation) to "paragraph 14-12b,
AR 635-200"
* Item 26 (Separation Code) to "JKM"
* Item 27 (Reenlistment Code) to "RE3"
* Item 28 (Narrative Reason for Separation) to "Misconduct - Pattern of Misconduct"

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence 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.

17.  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 evidence of record confirms the ADRB determined the characterization of the applicant's discharge was both proper and equitable.  However, the ADRB determined that the reason and authority for his discharge was incorrect and directed it be changed accordingly from paragraph 14-12c to 14-12b of Army Regulation 635-200 and a DD Form 215 was issued. 

2.  Based on the evidence of record and the corrections made by the ADRB, the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  In view of the above, the applicant's request should be denied.

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)                                         AR20100023751



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ABCMR Record of Proceedings (cont)                                         AR20100023751



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