IN THE CASE OF:	

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100026504 


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 his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states he was very young and did not understand the consequences of his actions at the time.  He would like to obtain benefits from the Department of Veterans Affairs (VA).

3.  The applicant 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.  He enlisted in the Regular Army, at age 17 with parental consent, on 
6 December 1976 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman).

3.  On 22 April 1977, he was assigned to the 1st Battalion, 70th Armor in Germany.

4.  On 28 December 1977, he accepted nonjudicial punishment (NJP) for failure to go at the time prescribed to his appointed place of duty.

5.  On 22 March 1978, he was convicted at a special court-martial of three specifications of offering violence to a first lieutenant.  His sentence consisted of:

* confinement at hard labor for 3 months
* forfeiture of $125 pay for 3 months
* reduction to pay grade E-1

6.  He was confined at the U.S. Army Retraining Brigade (USARB), Mannheim, Germany.  On 4 May 1978, he was transferred to USARB, Fort Riley, KS.

7.  He accepted NJP on:

* 5 June 1978 for wrongful possession of marijuana
* 7 June 1978 for being absent without authority from his unit

8.  On 13 June 1978, his unit commander recommended that he be discharged because of misconduct, frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  The commander also recommended waiver of a rehabilitative transfer.

9.  On 16 June 1978, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated he was not submitting statements in his own behalf and he waived counsel.  





10.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  The applicant also acknowledged as a result of the issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both federal and state laws and he may expect to encounter substantial prejudice in civilian life.

11.  On 23 June 1978, the appropriate authority approved the recommendation for discharge due to a pattern of misconduct, waived the requirement for rehabilitative transfer, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  

12.  On 26 June 1978, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities with his service characterized as under other than honorable conditions.  He had completed 
1 year and 5 months active service.  He had 51 days time lost.

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 5 December 1995, the ADRB denied the applicant's request for an upgrade of his discharge.  The ADRB determined that the applicant's discharge was proper, equitable, and appropriately characterized as under other than honorable conditions.

14.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Included in the categories for discharge was frequent involvement in incidents of a discreditable nature with civil or military authorities.  Action was to be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

15.  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 age at the time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  He accepted NJP on three occasions and he was convicted by a special court-martial of three specifications of offering violence to a commissioned officer.  His first NJP and his special court-martial occurred while he was assigned overseas.  His misconduct overseas and continued misconduct while assigned to the USARB at Fort Riley clearly show his service to be unsatisfactory.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The applicant's records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  The ABCMR does not upgrade discharges based solely on the passage of time or to make an individual eligible for benefits from another agency.

5.  Based on the foregoing, there is an insufficient basis to upgrade his 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 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)                                         AR20100026504



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ABCMR Record of Proceedings (cont)                                         AR20100026504



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