IN THE CASE OF:	

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110012005 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he volunteered in 1979 and he was given an honorable discharge because his enlistment was erroneous.  He goes on to state that he desires an upgrade of his discharge in order to obtain disability benefits.

3.  The applicant provides copies of his DD Forms 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.  The applicant was born on 19 February 1961 and enlisted in the Regular Army on 22 June 1979 for a period of 3 years, training as a military policeman, and assignment to Fort Stewart, GA.  At the time of his enlistment he stated he had completed the 10th grade of high school.

3.  He was transferred to Fort McClellan, AL to undergo his one-station unit training.  On 23 August 1979, the applicant’s commander advised him that he had contacted an official at his high school and discovered he had not completed the 10th grade, which was a non-waivable disqualification.  He advised the applicant he was initiating action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-25, due to an erroneous enlistment.  The applicant indicated that he desired to be discharged as well.

4.  The recommendation for discharge was approved and on 11 October 1979 and the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-25, due to an erroneous enlistment.  He had served 3 months and 20 days of creditable active service.

5.  The applicant subsequently received his General Educational Development (GED) from the Mississippi Department of Education.  On 29 October 1979, he enlisted in the Regular Army for a period of 4 years, training as a chemical operations specialist, and assignment to Fort Hood, TX.  He completed his advanced individual training at Aberdeen Proving Ground, MD and he was transferred to Fort Hood on 19 February 1980.

6.  On 15 May 1981, he was transferred to Katterbach, Germany.  On 1 August 1981, he was advanced to the rank/grade of specialist four (SP4)/E-4.

7.  On 26 October 1981, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for failing to go at the time prescribed to his appointed place of duty.

8.  On 10 November 1981, NJP under Article 15, UCMJ, was again imposed against him for failing to go at the time prescribed to his appointed place of duty.

9.  On 3 September 1982, he went absent without leave (AWOL) until 7 September 1982.  On 8 September 1982, he again went AWOL until 27 September 1982.

10.  On 25 October 1982, he was convicted by a summary court-martial for the two period of AWOL.  He was sentenced to confinement at hard labor for
30 days, reduction to the private (PV1)/E-1, and a forfeiture of $275.00 pay per month for 1 month.
11.  On 8 November 1982 the applicant’s commander initiated action to bar him from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record, his having a letter of indebtedness of $1,700.00, his six citations by German authorities, his inability to adapt to military life, his failure to maintain a military appearance, his apathetic attitude towards counseling, and his failure to exhibit pride and professionalism in his work.  The bar to reenlistment was approved on 9 November 1982.

12.  On 10 November 1982, the applicant was transferred to the U.S. Army Correctional Activity (USACA) at Fort Riley, KS to serve his sentence to confinement.

13.  On 13 December 1982, NJP under Article 15, UCMJ, was imposed against him for engaging in a fist fight in the barracks with another Soldier.

14.  On 16 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, due to misconduct.  He cited as the basis for his recommendation the applicant’s established pattern of misconduct as evidenced by his disciplinary record and his marginal performance at the USACA.

15.  After consulting with defense counsel the applicant waived all of his rights and elected to submit a statement in his own behalf wherein he asserted he wanted to return to duty and he believed that a chapter 14 discharge was too harsh.  He requested that if he could not be returned to duty, then he should be given a discharge under chapter 13 for unsuitability.

16.  On 22 December 1982, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b for a pattern of misconduct, with an under other than honorable conditions discharge.

17.  On 23 December 1982, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b due to misconduct – pattern of misconduct with an under other than honorable conditions discharge.  He served 3 years, 4 months, and 4 days of creditable active service with 41 days of time lost due to AWOL and confinement.

18.  There is no evidence the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

19.  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.  

20.  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.

21.  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.

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 of his service was 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 and his failure to take advantage of the rehabilitative attempts offered him at the time. The applicant’s overall service simply does not rise to the level of discharge under honorable conditions.

4.  In view of the foregoing, there is no basis for granting the applicant's request for an honorable or a general 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)                                         AR20110012005



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ABCMR Record of Proceedings (cont)                                         AR20110012005



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