IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025778 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states he was promised his discharge would be upgraded to a general discharge after 6 months and that is what he seeking.  He has been a model businessman in society and the military was a lifelong dream for him.

3.  The applicant provided no additional evidence.

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's records show he enlisted in the Regular Army on 17 June 1980 and he held military occupational specialty 36K (Tactical Wire Operations Specialist).  He was assigned to Company A, 1st Battalion, 32nd Infantry, Fort Ord, CA.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 7 May 1980, for failing to report to the prescribed place of duty
* on 11 August 1981, for disobeying a lawful order on two occasions
* on 11 September 1981, for falling asleep on duty
* on 11 December 1981, for stealing from a Soldier
* on 6 February 1982, for failing to report to the prescribed place of duty
* on 19 March 1982, for failing to report to the prescribed place of duty

4.  He was frequently counseled by several members of his chain of command between August 1981 and January 1982 for various infractions including failing to report, dereliction of duty, disobeying orders, stealing from other Soldiers, civilian confinement, and sleeping on duty.

5.  On 1 February 1982, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-33b, for misconduct.

6.  On 11 February 1982, he acknowledged receipt of the notification of his proposed discharge action.  On 11 March 1982, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights that were available to him.

7.  He acknowledged he understood if the discharge request were approved, he may be discharged under other than honorable conditions.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Additionally, he acknowledged he understood if he received a character of service which was less than honorable, he may apply to the Army Discharge Review Board or the ABCMR for upgrading; however, that act of consideration by either board did not imply that his discharge would be upgraded.

8.  On 25 March 1982, his chain of command recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-33b.

9.  On 8 April 1982, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-33b, and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 16 April 1982, he was discharged accordingly.

10.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, by reason of misconduct for frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service.  He completed 1 year and 10 months of active service.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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.

13.  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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on six occasions for failing to report to his prescribed place of duty, disobeying lawful orders, falling asleep on duty, and for stealing from another Soldier.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20100025778



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ABCMR Record of Proceedings (cont)                                         AR20100025778



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