IN THE CASE OF:	  

		BOARD DATE:	 21 July 2011 

		DOCKET NUMBER:  AR20110000987 


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.

2.  The applicant states he was young at the time and has matured into a 50-year old man.  He adds that he is a minister and has done better with his life.

3.  The applicant provides 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 19 September 1960.  His military records show he enlisted in the Regular Army on 30 January 1979.  He completed initial entry training and was awarded the military occupational specialty of canoneer.  The highest rank/grade he attained was private first class/E-3.

3.  Headquarters, 2nd Infantry Division Artillery Summary Court-Martial Order Number 5, dated 12 January 1980, shows he was arraigned and tried for violating a lawful general regulation by wrongfully purchasing in excess of the monthly dollar and quantity limitations on certain merchandise, to wit:  82 ounces of instant coffee when authorized 20 ounces; 290 ounces of mayonnaise when authorized 32 ounces; 96 ounces of soluble cream when authorized 24 ounces; 32 ounces of pepper when authorized 4 ounces; 144 ounces of tang when authorized 27 ounces; 410 packs of cigarettes when authorized 60 packs; 36 bottles of liquor when authorized 4 bottles; 888 cans of beer when authorized 192 cans a total of $726.85 when authorized $160.00.  He pled guilty and was found guilty.  He was sentenced to reduction to private E-1, forfeiture of $299.00 pay per month for 1 month, and confinement to hard labor for 30 days.  The sentence was adjudged on 12 January 1980.  On the same date the sentence was approved and ordered duly executed.

4.  He accepted nonjudicial punishment (NJP) on two occasions during the period 4 to 18 March 1980 for three times willfully disobeying a lawful order, for failing at the time prescribed to go to his appointed place of duty, and for being disrespectful in language toward his superior noncommissioned officer.

5.  On 19 March 1980, his commander requested the applicant be discharged from the service for misconduct because of frequent incidents of a discreditable nature.  His commander indicated the applicant had received considerable counseling since his arrival at the facility by social workers, the leadership team, and unit cadre.  He stated that in his opinion the applicant had the mental and physical ability necessary to be an effective Soldier, but his present record and his failure to react constructively to the rehabilitation program was indicative that he should not be retained in the service.

6.  On 28 March 1980, he was advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant then waived his rights.

7.  On 2 April 1980, the appropriate authority approved his separation under the provisions of Army Regulation 635-200, chapter 14 and directed that he be given an under other than honorable conditions discharge.

8.  His DD Form 214 shows he was discharged on 3 April 1980 with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 14-33b, by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 2 months, and 14 days of active military service.

9.  On 25 January 1982, the Army Discharge Review Board denied his request for an upgrade of his under other than honorable conditions discharge.

10.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  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:

1.  He was convicted by summary court-martial of wrongfully purchasing in excess of the monthly dollar and quantity limitations on certain merchandise of a total of $726.85 when authorized $160.00. 

2.  His records show he received NJP on two occasions for misconduct of three times willfully disobeying a lawful order, for failing at the time prescribed to go to his appointed place of duty, and for being disrespectful in language toward his superior noncommissioned officer.  Such conduct was certainly not honorable.

3.  Based on the applicant's record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or honorable discharge.

4.  The available evidence confirms his rights were protected throughout the discharge process.

5.  Records show he was 19 years old at the time of his misconduct for which he was discharged.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

6.  While it is commendable that he is now a minister, this is an insufficient basis to change a properly issued discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110000987



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ABCMR Record of Proceedings (cont)                                         AR20110000987



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