IN THE CASE OF:	  

		BOARD DATE:	   13 December 2011

		DOCKET NUMBER:  AR20110012757 


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 discharge under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states:

* his total service was honorable
* the discharge he received is inaccurate and did not consider his service as a whole
* he was willing to lay down his life for his country
* he is requesting an upgrade to be eligible for the veterans' benefits and entitlements that he earned by serving his country

3.  The applicant provides a self-authored statement as an addendum to his application and his DD Form 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 enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 5 September 1979.  On 5 November 1979, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 6 November 1979.

3.  The applicant trained at Fort Leonard Wood, MO, and was awarded military occupational specialty 51N (Water Supply Specialist).  Following training, he was transferred to Fort Hood, TX, followed by assignment to Germany.

4.  The applicant's records contain numerous negative counseling statements and five records of nonjudicial punishment under Article 15, Uniform Code of Military Justice, for:

	a.  being drunk and asleep on guard duty in May 1980, for which he received a reduction from E-2 to E-1, forfeiture of $50.00 pay per month for 1 month (suspended for 30 days), 14 days of extra duty, and 7 days of restriction;

	b.  failing to go at the time prescribed to physical training on 20 August 1980, for which he received a forfeiture of $104.00 pay per month for 1 month;

	c.  stealing a jacket valued at $110.00 from the Post Exchange on 4 October 1980, for which he received a forfeiture of $110.00 pay per month for 1 month and 20 days of correctional custody;

	d.  behaving with disrespect toward a first lieutenant on 16 December 1981, for which he received a reduction from E-2 to E-1, forfeiture of $100.00 pay per month for 1 month, and 14 days of restriction and extra duty; and

	e.  failing to go at the time prescribed to his appointed place of duty on 20 December 1981, for which he received a reduction to E-1 (suspended for 30 days), forfeiture of $128.00 pay per month for 1 month, and 14 days of restriction and extra duty.

5.  On 22 January 1982, the applicant was notified he was being processed for administrative separation for patterns of misconduct under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), due to frequent incidents with military authority.  On 25 January 1982, he waived his rights.

6.  On 28 January 1982, the approving authority – a general court-martial convening authority – approved the applicant's discharge for misconduct and directed he receive a discharge UOTHC.  On 10 February 1982, he was so discharged.

7.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of regulation.

9.  Army Regulation 635-200, paragraph 3-7a, states an HD 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.

10.  Army Regulation 635-200, paragraph 3-7b, states a GD 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 HD.  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 requests an HD based on his "total" (overall) honorable service.

2.  The applicant's overall service did not meet the standard required for an HD or a GD under honorable conditions.  The applicant was a continual disciplinary problem and was properly discharged for his pattern of misconduct.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have tended to jeopardize his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

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 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)                                         AR20110012757



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ABCMR Record of Proceedings (cont)                                         AR20110012757



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