BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100028279 


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 an honorable discharge.

2.  The applicant states he was told his discharge would be upgraded 2 years after he was discharged.  He adds that his records were lost in a flood.

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.  The applicant enlisted in the Regular Army for a period of 3 years on 19 February 1980.  Upon completion of training he was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant was advanced to private first class/E-3 on 1 December 1980.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three separate occasions for:

* failing to go at the time prescribed to his place of duty on 4 May 1981
* using disrespectful language toward a superior noncommissioned officer (NCO) on 16 June 1981
* disobeying a lawful order from a superior NCO on 5 September 1981 and being disorderly in command on 6 September 1981

5.  At a summary court-martial on 9 July 1981 the applicant pled guilty and was found guilty of the charge and specification of stealing one digital clock radio of a value of about $49.50, the property of the Army and Air Force Exchange Service.

	a.  He was sentenced to forfeit $300.00 pay per month for 1 month, to be confined at hard labor for 30 days, and to be reduced to private/E-1.

	b.  On 13 July 1981, the convening authority approved the sentence and ordered it executed.

6.  On 14 September 1981, the applicant's commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33, based on frequent involvement in incidents of a discreditable nature with civil or military authorities.

	a.  The reason for the proposed action was that the applicant had been sent to the brigade for the purpose of receiving correctional training necessary to return to duty as a well-trained Soldier with improved attitude and motivation.  However, the applicant's actions precluded accomplishment of the objective as evidenced by his behavior and attitude which the commander summarized on a resume of conduct, attitude, performance, and discreditable acts and attached to the separation packet.

	b.  He also cited the applicant's court-martial and three NJP's.

7.  On 24 September 1991, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant:

	a.  waived his rights and elected not to submit statements in his own behalf;

	b.  was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him;

	c.  was also advised that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life;

	d.  acknowledged he understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge; and

	e.  placed his signature on the document.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

9.  On 6 October 1981, the separation authority approved the recommendation for discharge and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for frequent involvement in incidents of a discreditable nature with civil or military authorities and issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 9 October 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities with his service characterized as under other than honorable conditions.  He completed 1 year, 5 months, and 20 days of net active service and he had 22 days of lost time.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 the regulation.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded because he was told his discharge would be upgraded 2 years after he was discharged.

2.  Records show the applicant acknowledged he understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  There is no evidence he was advised that his discharge would be upgraded after 2 years.  Thus, the applicant's contention is not supported by the evidence of record.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons for his discharge were appropriate and equitable.

4.  Records show the applicant received NJP on three separate occasions, was convicted by a summary court-martial, and had 22 days of lost time.  In addition, he completed only about one-half of his 3-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  In view of all of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100028279



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028279



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1