BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100024487 


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 he has been a upstanding citizen since leaving military service.

3.  The applicant provides five personal references.

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.  He enlisted in the Regular Army on 20 March 1980 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty of 11B (Infantryman).
3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 30 January 1981 for being absent from appointed place of duty, disobeying an order from a noncommissioned officer (NCO), and disrespect toward an NCO
* 18 February 1981 for being absent without leave (AWOL) from 26 - 30 January 1981
* 24 April 1981 for being AWOL during the periods from 3 - 5 February, from 9 - 11 March, from 13 - 22 March, and from 17 - 23 April 1981

4.  On 12 March 1981, the applicant was given a mental status evaluation by a lieutenant colonel in the Medical Corps.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

5.  On 23 April 1981, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct due to his frequent incidents of a discreditable nature with military authorities.  The commander informed him of his right to:

* consult with counsel
* present his case before a board of officers
* submit statements in his own behalf
* to consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

6.  On 24 April 1981, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  

7.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  The applicant also acknowledged that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

8.  On 29 April 1981, the applicant's commander recommended that he be discharged because of misconduct, frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  The commander also recommended waiver of a rehabilitative transfer.

9.  On 25 June 1981, the appropriate authority approved the recommendation for discharge due to a pattern of misconduct, waived the requirement for rehabilitative transfer, and directed the applicant's service be characterized as under other than honorable conditions.

10.  On 22 July 1981, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities with his service characterized as under other than honorable conditions.  He had completed 
1 year, 3 months, and 10 days active service. He had 23 days time lost.

11.  The applicant submitted five personal references.  

	a.  His mother and his wife attest to his being a hard worker, a good father to his three children, and he is always ready to help others.

	b.  Three people who have known him for at least 13 years attest to his being a hard worker who is always ready to help others.  He is a family man with a great attitude and is always dependable.  He donates time to the elderly to help them with yard work and small house repairs.

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Included in the categories for discharge was frequent involvement in incidents of a discreditable nature with civil or military authorities.  Action was to 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 considered appropriate.

14.  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.

15.  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 accepted NJP on three occasions within a period of 4 months, one of which was for four periods of AWOL.  These frequent instances of indiscipline clearly show he did not meet the standards of acceptable conduct and performance of duty for military personnel.  These frequent instances and the fact that he completed less than half of his enlistment commitment shows his service to be unsatisfactory.

2.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

3.  The applicant's post service accomplishments and conduct are noted.  However, the applicant's good post service conduct alone is not a sufficient basis for upgrading his discharge.  

4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable discharge or 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 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)                                         AR20100024487





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ABCMR Record of Proceedings (cont)                                         AR20100024487



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