IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20110001034 


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 his under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states he was being discriminated against by his superiors, fell into a depressed state, and started acting out.  

3.  The applicant provided 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's record shows he enlisted in the Regular Army on            15 July 1980.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 16D (HAWK Missile Crew Member).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for the offenses indicated:

   a.  on 23 July 1981, for willfully disobeying a lawful order from his superior noncommissioned officer;

   b.  on 4 September 1981, for willfully disobeying a lawful order from his superior officer and noncommissioned officer; and

   c.  on 19 October 1981, for willfully disobeying a lawful order from his superior noncommissioned officer.

4.  On 22 October 1981, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), section V, chapter 14 for other acts or patterns of misconduct.  

5.  On 22 October 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

6.  Records show the applicant underwent a separation medical evaluation and there was no evidence of diagnosis or treatment for depression at the time of  separation. 

7.  On 30 November 1981, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed that he be issued an under other than honorable conditions discharge.  On 7 December 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for misconduct-frequent incidents of a discreditable nature with civil or military authorities.  He completed a total of        1 year, 4 months, and 23 days of creditable active military service. 

8.  The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 9 May 1997, he was notified he was properly and equitably discharged and his request to change the character of his discharge was denied.  

9.  There is no evidence in the applicant's personnel service record which shows that the applicant sought assistance from his chain of command for issues involving discrimination.

10.  There is no evidence in the applicant's personnel service record which shows that the applicant sought assistance from his chain of command for issues involving depression.

11.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this contention.

2.  Although the applicant alleges that he was a victim of discrimination during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged discrimination.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

3.  The applicant alleges that he fell into a depressed state and started acting out.  There is no evidence in his military records and the applicant has not provided sufficient evidence that shows he was diagnosed with and/or treated for depression at the time of his discharge.  Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged medical condition.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

4.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's record includes evidence which shows he received nonjudicial  punishment on three occasions for disobeying lawful orders from his superiors.  

6.  This misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general under honorable conditions discharge.

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)                                         AR20110001034



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ABCMR Record of Proceedings (cont)                                         AR20110001034



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