IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100025070 


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 because of the time that has elapsed.

2.  He states he served honorably on his first term of service.  He further states that he was a good Soldier and loves his country.

3.  He provides no additional evidence 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 30 May 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).

3.  On 16 December 1981, he was honorably discharged for the purpose of immediate reenlistment and he reenlisted on 17 December 1981.  On 1 October 1983, he was promoted to the rank/grade of sergeant (SGT)/E-5.

4.  His record reveals a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 9 November 1984, for wrongfully and willfully looking through a female Soldier's window between August and October 1984, and unlawfully entering a female Soldier's room with the intent to commit a criminal offense on 11 October 1984.  His punishment included a reduction to specialist four (SP4)/E-4.

	b.  on 4 January 1985, for operating a vehicle while drunk on 28 November 1984.  His punishment included a reduction to private (PV1)/E-1.

5.  On 15 January 1985, he received a General Officer Letter of Reprimand (GOLOR) for driving a vehicle while intoxicated on 28 November 1984.

6.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 6 February 1985, shows he was barred to reenlistment for poor conduct and performance during his second term of service and repeatedly showing signs of bad judgment.  He elected not to submit a statement in his own behalf.

7.  His service personnel record does not contain the specific facts and circumstances surrounding his separation process.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending
29 May 1985 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, by reason of "Misconduct - Pattern of Misconduct" in the rank/grade of private (PVT)/E-1 with an under other than honorable conditions discharge.  He completed 7 years of creditable active service with no time lost.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term 

of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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's honorable service and good conduct for his first term of is noteworthy.  However, prior honorable service and good conduct alone are not bases for upgrading a discharge and are not sufficient to mitigate his indiscipline while in the Army.

2.  His discharge packet was not available for review; therefore, it is presumed that his administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would have jeopardized his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The evidence of record shows he received two Article 15's, he was issued a GOLOR, and he was barred to reenlistment.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general or honorable discharge.

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

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)                                         AR20100025070



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ABCMR Record of Proceedings (cont)                                         AR20100025070



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