IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110004817 


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 other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, he was very young when the incidents took place.  The frequent incidents of a discreditable nature with civil authorities were basically traffic tickets.  He has been on his job 26 years, he has a family, and he has been a model citizen since being discharged from the military.  He now has terminal cancer and wishes that his headstone would reflect the 3 years of dedicated service he gave to the military. 

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 27 August 1956 and enlisted in the Regular Army at age 18 on 29 August 1974.  He was trained in and awarded military occupational specialty 36K (Wireman).  The highest rank/grade he attained while serving on active duty was specialist pay grade E-4.

3.  Between August 1974 and December 1976, the applicant received six nonjudicial punishments (NJP’s) for the following offenses:

* two incidents of possession Marijuana
* two incidents of willfully disobeying lawful orders
* two incidents of sleeping while on guard duty

4.  On 11 March 1977, the applicant was convicted by a special court-martial of assaulting a noncommissioned officer.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of $200.00 pay for 2 months. 

5.  Between March 1977 and April 1977, the applicant was counseled over 
21 times for numerous offenses.

6.  On 15 April 1977, the unit commander notified the applicant he was initiating separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  

7.  On the same date, the applicant acknowledged receipt of the notification and was advised by consulting counsel of the basis for the contemplated separation action, its effects and the rights available to him.  The applicant requested consideration of his case before a board of officers and to be represented by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a less than fully honorable discharge was issued to him.  He further acknowledged he understood that he may be ineligible for many benefits as a veteran under both federal and state laws.  

8.  On 21 April 1977, the applicant was notified to appear before a board of officers to determine whether he should remain in the service or be administratively separated due to misconduct before the expiration of his term of service.  On 27 April 1977, the board convened and the applicant appeared before the board with counsel.  After reviewing the findings the board recommended that applicant be eliminated from the service for misconduct with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.
9.  On 4 May 1977, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

10.  Accordingly, on 8 May 1977, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, due to misconduct-frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  He completed a total of 2 years, 8 months, and 24 day of active service.  

11.  On 23 January 1981, the Army Discharge Review Board upgraded the applicant’s discharge to under honorable conditions (General).

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

13.  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's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows his upgraded discharge (general discharge) should be further upgraded to a fully honorable discharge. 

2.  The evidence of record, however, does show the applicant was tried and convicted by a special court-martial.  He received six NJP’s and was formally counseled on 21 different occasions for numerous offenses.  These offenses were serious acts of misconduct, which warranted a less than fully honorable discharge.

3.  As a result, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.

4.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting an honorable discharge.

5.  The applicant enlisted at age 18 and he was age 20 at the time he committed most of his offenses.  Therefore, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

6.  In view of the above, there is no basis for granting his 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)                                         AR20110004817



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ABCMR Record of Proceedings (cont)                                         AR20110004817



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