IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100028405 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* He performed all his military duties in a professional manner but some of his actions as a civilian were indeed unprofessional
* His job performance was above satisfactory

3.  The applicant provides a DA Form 2166-5 (Enlisted Evaluation Report) for the period beginning in July 1977 and ending in February 1978.

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 9 November 1976 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 19F (tank driver).

3.  On 4 February 1980, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 4-11 January 1980.

4.  On 11 February 1980, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order.

5.  On 2 June 1980, NJP was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.

6.  On 28 July 1980, NJP was imposed against the applicant for breaking said medical quarters and wrongfully possessing marijuana.

7.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, on 25 August 1980, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 14, for misconduct and directed the issuance of an under other than honorable conditions discharge.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 September 1980 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge.  He completed 3 years, 9 months, and 23 days of creditable active service with 9 days of time lost.

9.  On 10 March 1982, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

10.  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.

11.  Army Regulation 635-200, 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.

12. 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:

In the absence of evidence to the contrary, it must be presumed his separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's 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 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)                                         AR20100028405



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028405



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1