IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100026259


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 a general discharge (GD).

2.  The applicant states, in effect, he agreed to be discharged for the good of the service and he was given a GD.

3.  The applicant provides no additional documentation.

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 for 3 years on 22 June 1979.  He underwent Basic Combat Training at Fort Bliss, TX and remained at Fort Bliss for Advanced Individual Training in military occupational specialty 94B (Cook).  His first permanent duty assignment was in Germany with Company B, 32nd Signal Battalion.  He arrived in Germany on or about 18 December 1979.

3.  Soon after his arrival in Germany, the applicant committed misconduct and was charged under the Uniform Code of Military Justice.  Special Court-Martial Order Number 11, Headquarters, V Corps, Germany, dated 3 April 1980 shows the following charges, pleas, and findings:

* Charge I.  Article 91.  Plea:  Not Guilty.  Finding:  Guilty

* Specification:  Assaulting a Chief Warrant Officer on or about 13 January 1980 by grabbing the lapels of his jacket and pushing him

* Charge II.  Article 128.  Plea:  Not Guilty.  Finding:  Not Guilty

* Specification:  Committing an assault on a sergeant on or about 13 January 1980 by threatening him with a dangerous weapon, to wit:  a knife

* Charge III.  Article 134.  Plea:  Not Guilty.  Finding:  Guilty

* Specification 1:  On or about 13 January 1980, wrongfully communicating a threat to kill a sergeant if he pressed charges against him.  Plea:  Not Guilty.  Finding:  Guilty
* Specification 2:  On or about 13 January 1980, being drunk and disorderly.  Plea:  Not Guilty.  Finding:  Guilty

4.  The sentence was adjudged on 17 March 1980 and consisted of a reprimand, a forfeiture of $298 pay for 6 months, reduction to the lowest enlisted grade, and confinement for 6 months.  He was confined at the Mannheim Correctional Facility, Mannheim, Germany on 17 March 1980.  

5.  The sentence was approved and ordered executed, but that portion pertaining to a forfeiture of pay which exceeded $150 pay for 6 months was suspended until the applicant was released from confinement, at which time, unless sooner vacated, all uncollected forfeitures of pay would be remitted without further action.


6.  On 27 March 1980, the applicant was transferred to the U.S. Army Retraining Brigade (USARB), Fort Riley, KS.  While at the USARB, the applicant did not perform to standard and committed multiple acts of misconduct, including possession of marijuana, being disrespectful towards a female Soldier, breaking restriction, altering a Sick Slip, and missing bed check.  

7.  The applicant's chain of command notified him of the intent to initiate separation action against him in accordance with chapter 14, Army Regulation 635-200 (Personnel Separations), for misconduct, frequent incidents of a discreditable nature.   

8.  On 4 August 1980, the applicant consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge action, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He also indicated that he was not submitting a statement in his own behalf.  

9.  A DA Form 2496 (Disposition Form), dated 7 August 1980, shows the applicant's recommendation for discharge under the provisions of chapter 14, Army Regulation 635-200 due to misconduct was forwarded to the Staff Judge Advocate (SJA).  On 11 August 1980, the SJA determined the separation action was legally sufficient.

10.  On 13 August 1980, the Acting Commander at the USARB recommended that the applicant be discharge under other than honorable conditions.

11.  On 9 September 1980, the applicant was transferred to the U.S. Army Disciplinary Barracks, Fort Leavenworth, KS due to separation processing.

12.  On 9 October 1980, the approval authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200 with an under other than honorable conditions discharge.  Accordingly, on 7 November 1980, he was so discharged.  He had completed 10 months and 17 days of active service and 153 days of lost time due to being in confinement.

13.  There is no evidence that the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.


14.  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, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general GD under honorable conditions or an honorable discharge may be granted.

15.  Army Regulation 635-200 provides guidance on characterization of service.  Paragraph 3-7b states that a GD 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 requests a discharge upgrade.

2.  The applicant was convicted of serious misconduct.  He was sentenced to confinement, but he did not receive a punitive discharge.  Instead, he was sentenced to confinement at the USARB from which he could be fully restored to duty.  He committed misconduct while at USARB and his chain of command, seeing no rehabilitative potential, recommended that he be discharged under the provisions of chapter 14, Army Regulation 635-200.

3.  Discharges under chapter 14 are not discharges for the good of the service; the applicant did not request a discharge it was involuntarily forced upon him.  Given the misconduct which landed him at USARB and the misconduct he committed while there his discharge was appropriate and the character of the discharge was commensurate with his overall record of military service.

4.  The applicant has failed to submit evidence sufficient to warrant his 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)                                         AR20100026259



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026259



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1