BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110008144 


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 to a fully honorable discharge.

2.  The applicant states that he faithfully served his country when asked as an 18 year old kid who was ignorant of his choices; however, his actions did not warrant the discharge he received and all of his commanders can attest to his commitment and dedication to service.

3.  The applicant provides no supporting 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 was born on 13 March 1962 and enlisted in Philadelphia, Pennsylvania on 19 June 1980 for a period of 3 years, training as an air defense artillery short range missile crewman, and assignment to Europe.  He completed his one-station unit training (OSUT) at Fort Bliss, Texas and was transferred to Germany on 19 October 1980. 

3.  On 19 October 1981 nonjudicial punishment (NJP) was imposed against him for sleeping on guard duty.

4.  On 16 February 1982 NJP was imposed against him for being absent without leave (AWOL) from 29 December 1981 to 8 January 1982.

5.  The applicant departed Germany on 15 April 1982 for assignment to Fort Carson, Colorado.

6.  On 1 July 1982 NJP was imposed against him for being AWOL from 19 June to 26 June 1982.

7.  On 13 September 1982 NJP was imposed against him for failure to go to his place of duty and for being AWOL from 25 August to 26 August 1982.

8.  On 13 October 1982 NJP was imposed against him for being AWOL from 8 October to 13 October 1982. 

9.  On 2 December 1982 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct based on his disciplinary record.

10.  On 3 December 1982, after consulting with counsel, the applicant waived all of his rights and declined to submit a statement in his own behalf.

11.  On 14 December 1982, the appropriate authority (a major general) approved the recommendation for discharge and directed that the applicant be discharged under other than honorable conditions.

12.  On 22 December 1982 NJP was imposed against him for being AWOL from 9 November to 29 November 1982.

13.  Accordingly, he was discharged under other than honorable conditions on 
23 December 1982, under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct – pattern of misconduct.  He had served 2 years, 
4 months, and 9 days of active service and he had approximately 25 days of lost time due to AWOL.

14.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  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.  

16.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.

17.  Paragraph 3-7b 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.  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 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 repeated nature of his offenses.  The applicant’s overall service simply does not rise to the level of 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)                                         AR20110008144





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ABCMR Record of Proceedings (cont)                                         AR20110008144



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