IN THE CASE OF:	  

		BOARD DATE:	  13 April 11

		DOCKET NUMBER:  AR20100024527 

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 honorable.

2.  The applicant states he served in the U.S. Army for 3 years and 7 months.  He served overseas in Germany and was promoted to private first class (PFC).

	a.  He was considered to be an accomplice in a crime that took place while he was stationed in Germany.  He and another Soldier were charged with the crime and they received probation for 2 years and discharges under other than honorable conditions for their misconduct.

	b.  The incident occurred more than 20 years ago and he regrets the mistake he made.

	c.  The character of his discharge makes him ineligible for veterans' benefits and social services.  He adds that he is a family man who is seeking to enhance his employment opportunities and continue to be a productive citizen.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

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 8 April 1980.  Upon completion of training he was awarded military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 19 December 1980 for wrongfully having marijuana in his possession.  His punishment was a reduction to private/pay grade E-1 (suspended for 60 days) and 7 days of extra duty.

4.  The applicant was advanced to PFC/pay grade E-3 on 8 April 1981.

5.  The applicant was assigned overseas to Germany on 26 January 1982.

6.  The applicant received NJP under Article 15, UCMJ, on three additional occasions, as follows:

	a.  on 4 April 1983, for failing to obey a lawful order and for wrongfully using provoking words.  His punishment was reduction to private/E-2, forfeiture of $149.00 pay for 1 month, 14 days of restriction, and 14 days of extra duty;

	b.  on 29 April 1983, for being drunk and disorderly.  His punishment was reduction to private/E-1, forfeiture of $150.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty; and

	c.  on 21 November 1983, for assaulting a female Soldier by striking her with his right hand.  His punishment was forfeiture of $250.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

7.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

8.  U.S. Army Regional Center, Nurnberg, Germany, Orders 57-74, dated 27 February 1984, reassigned the applicant to the U.S. Army Separation Transfer Point, Fort Jackson, SC, for discharge on 9 March 1984.

9.  The applicant's DD Form 214 shows he was discharged under other than honorable conditions on 9 March 1984 in accordance with Army Regulation 
635-200 (Personnel Separations - Enlisted Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 3 years, 11 months, and 2 days of net active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 (one for which a punitive discharge is warranted and authorized), and convictions by civil authorities.  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 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 the regulation.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded because he was promoted to PFC and served nearly 4 years on active duty.
 
2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  In the absence of evidence to the contrary, the type of discharge directed and the reasons were appropriate considering the available facts of the case.

3.  Records show the applicant received NJP on four separate occasions.  The last Article 15 was imposed against the applicant based on his assault on a female Soldier.  Despite the absence of the applicant's separation packet, the applicant acknowledges that he was considered an accomplice in a crime and "to this day regrets the mistake he made."  Given the foregoing, it is concluded that the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

4.  The applicant's status as a family man who is seeking to enhance his opportunities was considered; however, it is not so meritorious as to warrant an upgrade of his discharge.

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

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits/social services.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care (and other benefits) or social services should be addressed to the Department of Veterans Affairs or appropriate government agency.


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)                                         AR20100024527



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ABCMR Record of Proceedings (cont)                                         AR20100024527



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