IN THE CASE OF:	 

		BOARD DATE:	23 June 2011

		DOCKET NUMBER:  AR20100030243


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, in effect, an upgrade of his under other than honorable conditions discharge.  

2.  The applicant states, in effect:

* at the time of his discharge, he had been in the Army for 8 years and had received the Army Good Conduct Medal at each of his reenlistments
* he spent 6 years in Germany without incident
* he attended every school he could get and excelled as a leader in the field
* he was selected for promotion to staff sergeant/E-6
* he was brought up on charges for something he contends he did not do – the charges were later dropped
* he was chaptered out of the Army for a pattern of misconduct, although there was nothing in his records to support this 
* he requested to see his records and was told he would receive an under other than honorable conditions discharge and he had 2 days to vacate the installation 
* he had no warning or trial, he was just stripped of his rank and escorted off the installation with his spouse and baby
* he never disrespected his uniform or the Army
* his discharge has been a source of embarrassment and shame to him
* he is an honest, law-abiding member of his community and a deacon in his church


3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States)
* memorandum, Commander, U.S. Army White Sands Missile Range, undated
* Orders 175-1, U.S. Army White Sands Missile Range, dated 9 October 1986
* Standard Form (SF) 88 (Report of Medical Examination), dated 25 March 1978
* SF 88, dated 5 June 1986
* SF 601 (Health Record – Immunization Record)
* SF 603 (Health Record – Dental)
* 2 third-party letters of support

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 (RA), for a 3-year term, on 5 April 1978.  He completed training and was awarded military occupational specialty (MOS) 16C (Hercules Fire Control Crewman).  

3.  On 3 January 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disrespecting a superior Noncommissioned Officer (NCO), then in the execution of his duties, on 1 January 1979.


4.  On 5 June 1979, he received NJP under the provisions of Article 15, UCMJ, for unlawfully striking a fellow Soldier in the face with his fist on 20 May 1979.

5.  The applicant was honorably discharged on 8 October 1981 for the purpose of immediate reenlistment.  He reenlisted on 9 October 1981.  On 16 August 1984, he was again honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 17 August 1984.

6.  On 28 May 1986, he received an administrative letter of reprimand for engaging in acts of misconduct; specifically, kissing and fondling the married wife of a fellow Soldier.

7.  The facts and circumstances surrounding the applicant's discharge are not on file; however, his record contains a properly-constituted DD Form 214 that shows he was discharged on 17 October 1986, under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations), and issued an under other than honorable conditions discharge.  This form confirms he completed 8 years, 6 months, and 13 days of total active service.  The highest rank/pay grade he attained while serving on active duty was sergeant (SGT)/E-5.

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

9.  He provides 2 third-party letters of support, each attesting to his work ethic, trustworthiness, honor, integrity, dedication, and selflessness as a civic leader and church member.  

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.  

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  Although his administrative separation packet is not available for review, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during his last enlistment.   

3.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

4.  In view of the foregoing, there is insufficient evidence for granting his 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20100030243



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