IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110008490 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was told that his discharge would be upgraded for the time he served in the Army.  He wants to get his medical benefits and insurance for his family. 

3.  The applicant provides a self-authored statement in support of 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 enlisted in the Regular Army on 9 May 1978.  He successfully completed training and he was awarded military occupational specialty 12B (combat engineer).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  His record contains an extensive history of negative counseling by members of his chain of command for various infractions including:

* Possession of some quantity of marijuana
* Disobeying lawful orders
* Breach of the peace by using profound language toward a noncommissioned officer (NCO)
* Loss of military bearing
* Multiple instances of disrespect
* Insubordination
* Disrupting training
* Failing to be at his appointed place of duty 

4.  On 12 October 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing some quantity of marijuana on or about 15 September 1978.

5.  He had time lost during several periods for being absent without leave (AWOL), dropped from the rolls (DFR) of the Army, or in military confinement as follows:

FROM
THRU
DAYS
REASON
790215
790215
1
AWOL
790925
790926
1
AWOL
791012
791205
55
AWOL/DFR
791207
791208
2
AWOL
800117
800120
4
AWOL
800122
800306
45
MIL CONF
6.  On 1 April 1980, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully causing a breach of peace by communicating profane language to an NCO in front of a company formation.  He refused to consult with legal counsel and he voluntarily decided not to demand trial by court-martial.

7.  On 23 April 1980, in view of his repeated misconduct, he underwent a mental status evaluation.  He was described as being fully alert and oriented with normal behavior and a level mood.  His thought process was clear and his memory was good.  He had the mental capacity to understand and participate in administrative proceedings.  He was mentally responsible and met the retention standards of Army Regulation 40-501 (Standard of Medical Fitness), chapter 3.  He was cleared for administrative separation deemed appropriate by his chain of command.

8.  On 24 April 1980, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-33 for misconduct - frequent incidents of a discreditable nature.

9.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he 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 elected not to submit a statement in his own behalf.

10.  He further acknowledged he understood that 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.

11.  On 15 May 1980, the separation authority approved the applicant's recommendation for separation under the provisions of Army Regulation
635-200, chapter 14, by reason of misconduct, with issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 16 May 1980, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), by reason of misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities with a character of service of under other than honorable conditions.  His DD Form 214 further confirms he completed 1 year, 9 months, and 29 days of creditable active service, with 109 days of time lost.

13.  On 10 March 1982, the applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 9 September 1982, the ADRB reviewed the evidence of record and found that the applicant's discharge was both proper and equitable based on his record of repetitive misconduct and time lost due to multiple periods of AWOL and one period of confinement.  As such, the ADRB denied the applicant's request for upgrade of his discharge.  He was duly notified of the ADRB's decision on 20 September 1982.

14.  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 included 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.  

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded.

2.  The evidence of record shows the applicant displayed a pattern of misconduct by his multiple periods of AWOL, communicating profane language toward an NCO, and possession of illegal drugs.  Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows the 

applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  In connection with his separation processing and in response to his misconduct, he underwent a mental status evaluation wherein he was found mentally responsible.  There is no evidence in his record and he failed to provide any evidence that shows he suffered from a mental disorder at the time.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or a general discharge.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veteran's benefits is also not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20110008490



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ABCMR Record of Proceedings (cont)                                         AR20110008490



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