BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20110000066 


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:

* The debts have been resolved
* He was told his discharge would be changed to honorable after 6 months
* A back injury occurred in the Army and he needs help with his back

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* extracts of his service medical records

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 18 September 1979 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 63B (wheel vehicle/power generation mechanic).  

3.  On 6 August 1980, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for writing bad checks (12 specifications).

4.  A Standard Form (SF) 502 (Clinical Record - Narrative Summary), dated
13 September 1980, shows he injured his back and left wrist.  The record states he "was drinking while repelling [sic] down a cliff when he lost his grip and fell approximately 20 ft [feet]."

5.  On 8 April 1981, NJP was imposed against the applicant for failing to obey a lawful order.

6.  On 17 February 1982, NJP was imposed against the applicant for writing bad checks (8 specifications).

7.  On 12 March 1982, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(3), for misconduct due to an established pattern of failing to pay just debts.  He cited the applicant had incurred a total debt of nearly $2,100.00 by fraudulently passing checks on a closed account.

8.  On 15 March 1982, the applicant consulted with counsel and he was advised of his rights.  He waived consideration of his case by a board of officers, waived a personal appearance, and waived representation.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He also acknowledged that as a result of the issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under Federal and State laws and that he might expect to 


encounter substantial prejudice in civilian life.  He elected not to submit a statement on his behalf.  

9.  On 16 March 1982, he underwent a separation physical examination and he was found qualified for separation.

10.  On 22 April 1982, the separation authority approved the recommendation for discharge and directed the issuance of an under other than honorable conditions discharge.

11.  He was accordingly discharged on 5 May 1982 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b(3), for misconduct with an under other than honorable conditions discharge.  He completed of 2 years,
7 months, and 18 days of creditable active service.

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

13.  Army Regulation 635-200 (Personnel Separations) 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.  

14.  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.  

15.  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.  He contends he was told his discharge would be changed to honorable after 6 months.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  He contends he injured his back while in the Army and now needs help.  It is acknowledged his injured his back in an alcohol-related incident while rappelling down a cliff on 13 September 1980.  However, he was found qualified for separation on 16 March 1982.   

3.  His record of service included indebtedness and three NJPs.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant’s record of service is insufficiently meritorious to warrant an honorable discharge or general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  In view of the foregoing, 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)                                         AR20110000066



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ABCMR Record of Proceedings (cont)                                         AR20110000066



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