IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024906 


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 an honorable discharge.  He also requests an Honorable Discharge Certificate for his first period of active duty.

2.  The applicant states that he served honorably in the U.S. Army from
17 September 1975 through 8 September 1978.  He reenlisted in October 1978 for a period of 4 years; however, this tour of duty ended with an under other than honorable conditions discharge.

   a.  He states his discharge was directly related to a marriage that he should not have been in.  He was young and inexperienced in matters dealing with marriage and the marriage was the source of financial stress.

   b.  He did not know how to effectively resolve issues before they became major problems and, as a result, his military career went into a downward spiral.

   c.  In retrospect, he can see the paths that he should have taken and the advice that he should have followed.

   d.  He points out that his discharge was not related to anything criminal or hostile and that it was based solely on domestic matters.  He adds that he did not apply for upgrade of his discharge sooner because he was doing a lot of contract cooking for companies across the United States of America, New Zealand, and Antarctica.
3.  The applicant provides copies of his two DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty), NGB Form 22 (Report of Separation and Record of Service), and discharge orders.

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 and entered active duty in the Regular Army (RA) for a period of 3 years on 18 September 1978.  At the time he was 17 years of age. Upon completion of training he was awarded military occupational specialty 55B (Ammunition Specialist).

3.  A DD Form 214 shows the applicant was honorably released from active duty on 8 September 1978 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.  He had completed 2 years, 11 months, and 21 days of net active service.

4.  The applicant enlisted and reentered active duty in the RA for a period of
4 years on 1 November 1978.  At the time he was 20 years of age.  He was reassigned overseas to Germany on 16 November 1978 and promoted to specialist five/pay grade E-5 on 12 March 1980.

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on three separate occasions, as follows:

   a.  on 28 April 1981, for failing to go at the time prescribed to his appointed place of duty; his punishment was forfeiture of $75.00 pay for one month and
14 days of extra duty;

   b.  on 29 July 1981, for failing to obey a lawful order; his punishment was reduction to grade E-4 and forfeiture of $100.00 pay for one month (suspended until 1 November 1981); and
   
   c.  on 2 April 1982, for failing to go at the time prescribed to his appointed place of duty; his punishment was reduction to grade E-3 (suspended for
60 days), 7 days of extra duty, and forfeiture of 7 days' pay (suspended for
60 days).  On 9 April 1982, the suspension of the punishment of reduction to grade E-3 was vacated and the unexecuted portion of the punishment was ordered executed.  The applicant appealed the NJP action and his appeal was granted in whole.

6.  On 27 April 1982, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on a pattern of misconduct.  The reason for his proposed action was the applicant's failure to pay just debts.  He noted that in a two-month period the applicant wrote 16 worthless checks totaling $686.56.  He also incurred debts of $40.00 to the Noncommissioned Officers' Club, $92.38 to the commissary, a $178.00 loan, and $250.32 in overdrawn savings.

   a.  The applicant appeared before a Board of Officers on 16 September 1982.

   b.  After hearing testimony by the applicant, his spouse, his company commander and noncommissioned officer in charge, the Board recommended the applicant be discharged from the Service based on misconduct with an under other than honorable conditions discharge.

   c.  On 21 September 1982, the applicant submitted a written letter of appeal to the separation authority.  

7.  On 13 October 1982, the separation authority approved the separation action and directed that the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, due to misconduct and that he be issued an Under Other Than Honorable Discharge Certificate.

8.  The applicant's DD Form 214 shows he entered active duty this period on
1 November 1978 and he was discharged on 29 October 1982 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct based on a pattern of misconduct with service characterized as under conditions other than honorable.  He had completed 3 years, 11 months, and 29 days of net active service this period and 2 years, 11 months, and 21 days of total prior active service.
9.  The applicant applied to the Army Discharge Review Board (ADRB) requesting a review of his discharge.  On 13 August 1984, after consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge under the provisions of AR 635-200, chapter 14, was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

10.  Army Regulation 635-200, in effect at the time, set 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 (frequent incidents of a discreditable nature with civil or military authorities), commission of a serious offense, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded because he was young and inexperienced in matters dealing with marriage and his marriage was the source of financial stress, which led to his discharge.  He also contends that he should be issued an Honorable Discharge Certificate for his first period of active duty (from 18 September 1975 through 8 September 1978) because he never received a discharge certificate for that period of service.

2.  Records show the applicant served honorably on active duty in the U.S. Army from 18 September 1975 through 8 September 1978.  Therefore, it would be appropriate to reissue the applicant an appropriate discharge certificate for that period of service.

3.  The applicant was 20 years of age when he successfully completed his initial period of honorable active duty service.  Records show the applicant was
23 years of age when he began to engage in acts of indiscipline, including his failure to pay his just debts.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age (who also were married) and successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.  

4.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons therefore were appropriate and equitable.

5.  Records show the applicant received NJP on two occasions (i.e., for failure to repair and then disobeying a lawful order).  Moreover, he accumulated financial obligations that were beyond his ability to manage and he then wrote numerous worthless checks.  Thus, 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.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

6.  The applicant's post-service conduct since his discharge was considered.  The applicant's good post-service conduct and work ethic are noteworthy, but is not so meritorious as to warrant an upgrade of his discharge.

7.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a DD Form 256A (Honorable Discharge Certificate) for the period
18 September 1975 to 8 September 1978.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his under other than honorable conditions discharge.  




      _______ _   _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)                                         AR20100024906



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ABCMR Record of Proceedings (cont)                                         AR20100024906



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