IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100025740 


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 an honorable discharge.  He also requests a copy of his DD Form 214 (Report of Separation from Active Duty).

2.  He states:

	a.  he served in the military from 1977 to 1979;

	b.  he has limited mobility due to paralysis of the C-5 vertebrae of his spine;

	c.  due to poor economic times he is experiencing financial hardship and difficulty finding the right physician for his medical needs; and

3.  He provides an undated self-authored letter.

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 requested a copy of his DD Form 214.  He is advised that a copy of his DD Form 214 for the period 19 July 1977 through 17 August 1979 will be provided with these Proceedings.  Therefore, this portion of the applicant's request will not be discussed further.

3.  The applicant enlisted in the Regular Army on 19 July 1977 for a period of
4 years.  He was trained in and awarded military occupational specialty 63B (Power Generation and Wheel Vehicle Mechanic).

4.  He received nonjudicial punishment under Article 15, Uniform Code for Military Justice (UCMJ) on four occasions for the following offenses:

	a.  22 May 1978 for three offenses of disobeying a lawful command from a commissioned officer on 10 May 1978;

	b.  22 June 1978 for disobeying a lawful order from a noncommissioned officer on 10 June 1979;

	c.  3 November 1978 for willfully and wrongfully damaging the property of another Soldier on 25 July 1978; stealing the property of the same Soldier on
25 July 1978; and with intent to deceive, between 21 September and 27 September 1978, sign an official record that he knew to be false; and

	d.  10 January 1979 for being absent without leave (AWOL) from
16 December 1978 to 8 January 1979.

5.  His record contains evidence which shows the following summary of facts concerning his discharge:

	a.  25 May 1979 - the applicant was notified of the company commander's intent to recommend his discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 14, due to misconduct;

	b.  29 May 1979 - the applicant submitted a statement concerning the proposed discharge, wherein he stated he wanted to remain in the service.  He stated while on emergency leave his father died, he was having problems dealing with the situation, and he went AWOL to try to sort things out.  His wife was also about to have a child and he was afraid the discharge situation would cause complications since their first child died at birth.  He promised to be a better Soldier.

	c.  6 June 1979 - the company commander recommended discharge under the provisions of Army Regulation 635-200, paragraph 14-33b(1) misconduct - frequent incidents of a discreditable nature with civil or military authorities;

	d.  2 August 1979 - having been advised by counsel, he waived his appearance before a board of officers, and he elected not to submit a statement in his own behalf;

	e.  2 August 1979  - the Staff Judge Advocate reviewed the discharge proceedings and found them to be legally sufficient;

	f.  10 August 1979 - the approval authority approved the discharge action and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 16 August 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued shows in:

	a.  item 9c (Authority and Reason) the entry "Paragraph 14-33b(1), Army Regulation 635-200, and Separation Program Designator (SPD) JKA [pattern of misconduct];

	b.  item 9e (Character of Service) the entry "Under Other than Honorable Conditions"; and

	c.  item 21 (Time Lost) the entry "13 days."

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

8.  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, 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 regulation.

9.  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.

10.  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:

The evidence of record shows the applicant had four Article 15's and he was separated with an under other than honorable conditions discharge by reason of misconduct - frequent incidents of discreditable nature with civil or military authorities.  Records also show he had 13 days of time lost.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

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)                                         AR20100025740



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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