BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029871 


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 he believes his overall Army career was good, but he was young and made some bad choices.  He goes on to state he would like his discharge to reflect his overall military career.

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 was born on 25 October 1959.  He enlisted in the Regular Army in Houston, Texas, on 23 August 1979 at nearly 20 years of age for a period of 4 years and training as a general construction equipment operator.

3.  He completed one-station unit training at Fort Leonard Wood, Missouri, and was transferred to Fort Meade, Maryland, on 15 February 1980.

4.  On 2 June 1980, nonjudicial punishment (NJP) was imposed against him for loitering at his guard post.

5.  The applicant was absent without leave (AWOL) from 21 to 24 June 1981.  The record is silent as to any punishment imposed for that offense.

6.  On 31 August 1981, NJP was imposed against him for two specifications of failing to go to his place of duty.

7.  On 27 December 1981, NJP was imposed against him for two specifications of failing to go to his place of duty and of being AWOL from 14 to 16 December 1981.

8.  On 15 January 1982, he was convicted by a summary court-martial of behaving with disrespect toward a superior commissioned officer.  He was sentenced to confinement at hard labor for 10 days.

9.  On 29 March 1982, he was convicted by a summary court-martial of failing to go to his place of duty and missing movement.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his sentence.

10.  On 12 May 1982, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer (NCO).

11.  On 24 May 1982, NJP was imposed against him for disobeying a lawful order from a superior NCO.

12.  On 26 May 1982, the applicant's commander at the Retraining Brigade notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-22, for misconduct based on his frequent involvement in incidents of a discreditable nature with civil or military authorities.  He cited the applicant's disciplinary record, unsatisfactory performance, failure to respond to numerous counseling sessions, and poor behavior and attitude as the basis for his recommendation.

13.  On 27 May 1982 after consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

14.  The appropriate authority approved the recommendation for discharge on 8 June 1982 and directed that he be discharged under other than honorable conditions.

15.  Accordingly, he was discharged under other than honorable conditions on 14 June 1982 under the provisions of Army Regulation 635-200, paragraph 
14-33b(1), for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 8 months, and 15 days of total active service with 37 days of lost time due to AWOL and imprisonment.

16.  There is no evidence in the available records to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  On 26 April 2002 while incarcerated in Huntsville, Texas, the applicant authorized the release of information from his military records to the Texas Department of Criminal Justice.

18.  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.

19.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

20.  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 repeated nature of his offenses and his resistance to rehabilitation.  The applicant's overall service simply did 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 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)                                         AR20100029871



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ABCMR Record of Proceedings (cont)                                         AR20100029871



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