IN THE CASE OF:	  

		BOARD DATE:	21 September 2011

		DOCKET NUMBER:  AR20110005401


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.

2.  The applicant states, in effect:

* the Board should consider that after he fractured his right ankle he began to supplement his pain medication with illicit drugs and alcohol
* these, in tandem, combined with his young age, impaired his decision-making ability, he did not know help was available
* the Board should also consider that the stolen property was voluntarily returned
* he committed the crime and is guilty – he just wants the Board to see there were mitigating circumstances in his case

3.  The applicant provides an extract of his DA Form 2-1 (Personnel Qualification Record – Part II) and a Standard Form (SF) 502 (Clinical Record – Narrative Summary), dated 21 January 1980.

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 28 March 1978.  He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  

3.  The applicant's discharge packet is not available for review; however, his 
DD Form 214 (Report of Separation from Active Duty) shows he was administratively discharged on 7 February 1980, under the provisions of Army Regulation 600-200 (Personnel Separations – Enlisted Personnel), chapter 10, and with an under other than honorable conditions discharge.  This form confirms he completed 1 year, 10 months, and 10 days of net active service.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

4.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

5.  The applicant provides an SF 502, dated 21 January 1980, which shows he had an infection in the suture site on his right ankle, related to the removal of screws from his ankle following a previous fracture. 

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

7.  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.
8.  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 contends his discharge should be upgraded due to mitigating circumstances.  He admits that he committed the crime, and he voluntarily returned the property; however, he fractured his right ankle and supplemented his pain medication with illicit drugs and alcohol.  This along with his age impaired his decision-making ability.  He did not know help was available.

2.  The applicant's contentions are not sufficiently mitigating to warrant an upgrade of his discharge.  The available evidence indicates he was charged with the commission of offenses punishable under the uniform code of military justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case the applicant voluntarily requested a discharge from the Army to avoid a felony conviction on his record.

4.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with the applicant’s overall record of military service.

5.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory; therefore, he is not entitled to either a general or 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)                                         AR20100014558



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005401



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1