IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20110001942 


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 an upgrade of his under honorable conditions (general) discharge to an honorable discharge.

2.  The applicant states the requested upgrade is for personal reasons.  He would be comfortable in his mind if the discharge is upgraded. 

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.  Having had prior active service, the applicant's records show he enlisted in the Regular Army on 25 April 1979 and held military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant’s records also show he served in Korea and Germany.  He was awarded the National Defense Service Medal, Good Conduct Medal (2nd Award), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar. 

4.  His records reveal an extensive history of counseling by members of his chain of command for various infractions mostly centered around his failure to pay debts, overweight, and substandard performance and appearance. 

5.  On 13 August 1980, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his failure to respond to counseling in regard to his frequent failure to pay his debts, apathy, and lack of satisfactory progress in the overweight program.  He was provided with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority.

6.  On 2 December 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* twice failing to go at the time prescribed to his appointed place of duty
* being absent without leave (AWOL) from 7 to 12 November 1980
* being drunk and disorderly in the housing area

His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended), a forfeiture of $176.00 pay, and 14 days of restriction and extra duty.

7.  On 19 December 1980, the suspended reduction was vacated and the unexecuted portion of the punishment was ordered executed.

8.  On 2 January 1981, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations), for a pattern of misconduct.  The immediate commander stated the applicant had established a pattern showing dishonorable failure to pay just debts.  His pattern of incidents of a discreditable nature with civil or military authorities was indicative of his total disregard for established law and procedures. 

9.  On 3 February 1981, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested a personal appearance before an administrative separation board but elected not to submit a statement on his own behalf.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws 

10.  On 4 February 1981, his immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for a pattern of misconduct.  The immediate commander stated the applicant had received extensive counseling by members of his chain of command and professional services but he failed to react positively.  His performance had been substandard, his appearance was apathetic, and his conduct on and off duty had been unsatisfactory.

11.  On 4 and 11 February 1981, the applicant's intermediate and senior commanders recommended approval.

12.  On 23 March 1981, an administrative separation board convened at Stork Barracks, Illesheim, Germany to consider if the applicant should be eliminated from the service.  The applicant and his counsel were present.  The board found the applicant was undesirable for further retention in the Army because of frequent incidents of a discreditable nature with civil and military authorities and because of showing an established pattern of failure to pay debts.  The board also found further rehabilitation was not deemed possible.  The board recommended his discharge by reason of misconduct with the issuance of a General Discharge Certificate.

13.  On 23 April 1981, the convening/separation authority approved the administrative separation board's findings and recommendation and ordered the applicant discharged from the Army under the provisions of chapter 14 of Army Regulation 635-200 by reason of a pattern of misconduct and directed he be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 19 May 1981. 


14.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - a pattern of misconduct with an under honorable conditions (general) character of service.  This form further confirms he completed a total of 8 years, 1 month, and 29 days of creditable military service and he had 5 days of lost time.

15.  On 1 July 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  

17.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded.

2.  The evidence of record shows the applicant had an extensive history of disciplinary problems and/or misconduct that included apathy, AWOL, failure to go at the time prescribed to his appointed place of duty, failure to pay debts, and failure to respond to counseling.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a fully honorable 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)                                         AR20110001942



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ABCMR Record of Proceedings (cont)                                         AR20110001942



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