IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20110001016 


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 and that he be issued a more favorable separation code.

2.  The applicant states, in effect, that he was young and not sure of things and he was mentally and physically sick over the death of his father and was in a crazy state of mind.  He also states that he was severely punished for his indiscretions.

3.  The applicant provides no additional documents with his application.

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 30 June 1975 for a period of 3 years and training as a supply clerk.  He completed his one-station unit training at Fort Jackson, South Carolina and was transferred to Germany on 
24 November 1975.  He was advanced to the pay grade of E-4 on 15 June 1977.

3.  On 30 March 1978 he reenlisted for a period of 3 years and assignment to Fort Hood, Texas.  He departed Germany on 22 June 1978 and was transferred to Fort Hood, Texas on 22 July 1978.

4.  On 3 November 1978 nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.

5.  On 19 December 1978 NJP was imposed against him for being disrespectful in language towards a superior noncommissioned officer and for disobeying a lawful order from a superior noncommissioned officer.

6.  On 22 December 1978 the applicant’s commander initiated action to bar him from reenlistment.  He stated that the applicant had received NJP for failure to repair, stealing government property, leaving the scene of an accident, and he was pending NJP at the time as the basis for his recommendation.  The applicant elected not to submit a statement in his own behalf and on 19 January 1979 the bar to reenlistment was approved.

7.  On 1 June 1979 NJP was imposed against him for two specifications of failure to go to his place of duty.

8.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Veterans Administration in Baltimore, Maryland in December 1979.  However, his records do contain a duly-authenticated DD Form 214 signed by the applicant which shows that he was discharged under other than honorable conditions on 10 July 1979 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) due to misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 4 years and 11 days of total active service and at the time of his discharge he was provided instructions on how to apply to the Army Discharge Review Board (ADRB), which he acknowledged by his signature.

9.  There is no evidence in the available records to show that he applied to the ADRB for an upgrade of his discharge within that board’s 15-year year statute of limitations.

10.  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.  

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.  In the absence of evidence to the contrary, it must be presumed 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 nature of his offenses.  The applicant’s overall service simply does 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 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)                                         AR20110001016





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ABCMR Record of Proceedings (cont)                                         AR20110001016



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