IN THE CASE OF:	  

		BOARD DATE:	    5 May 2011

		DOCKET NUMBER:  AR20100027250 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that at the time he did not speak English well and he suffered from sleep apnea and depression.  He also states that he did not know the law or the procedures for having his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of release or Discharge from Active Duty).

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 10 June 1980 for a period of 4 years, assignment to the 4th Infantry Division (Fort Carson, Colorado), and a cash enlistment bonus.  He completed his one-station unit training (OSUT) as an infantryman at Fort Benning, Georgia and was transferred to Fort Carson.  He was advanced to the pay grade of E-4 on 10 September 1981.

3.  On 9 November 1981 he was transferred to Germany for assignment to an infantry company.

4.  On 6 February 1983 he was convicted by a special court-martial of the wrongful possession and sale of hashish.  He was sentenced to be reduced to the pay grade of E-1, to forfeit $382.00 per month for 3 months and confinement at hard labor for 3 months.  He was transferred to the United States Army Correctional Activity (USACA) at Fort Riley, Kansas on 6 February 1983 to serve his confinement.

5.  On 11 March 1983 nonjudicial punishment was imposed against him for being derelict in the performance of his duties as barracks orderly by sleeping on duty.

6.  On 4 April 1983 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12(B) for misconduct.  He cited as the basis for his recommendation the applicant’s disciplinary record prior to his arrival at the USACA, his disciplinary record after his arrival, and his unsatisfactory performance at the USACA.

7.  After consulting with counsel the applicant elected to submit a statement in his own behalf whereas he asserted that he had tried to do everything possible to complete his training but apparently his counselor did not think so.  He went on to state that he planned on getting married and supporting a family; however, a bad discharge would destroy his chances.  He requested that he be given at least a General Discharge.

8.  The appropriate authority approved the recommendation for discharge on 12 April 1983 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 15 April 1983 under the provisions of Army Regulation 635-200, chapter 14, due to misconduct – pattern of misconduct.  He had served 2 years, 9 months and 11 days of total active service and had 25 days of lost time due to imprisonment.

10.  On 12 August 1983 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended that he could not find a job with the discharge he had and he needed an upgrade of his discharge so that he could support his family.  On 16 May 1984, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

12.  Paragraph 3-7a of Army Regulation 635-200 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Paragraph 3-7b of Army Regulation 635-200 also 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.
  
3.   The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offenses.  The applicant’s overall service simply does not rise to the level of a discharge under honorable conditions.


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)                                         AR20100027250





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ABCMR Record of Proceedings (cont)                                         AR20100027250



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