IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013964 


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.  He also requests information regarding his benefits.

2.  The applicant states he wants to check the information on his military benefits such as medical and loans, and he wants to upgrade his discharge.

3.  The applicant provides no additional evidence.

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 request for information on military benefits is outside the purview of this Board and will not be addressed further in this Record of Proceedings.  The applicant is advised to contact the Department of Veterans Affairs (VA) for questions concerning his benefits/entitlements.

3.  The applicant’s record shows he enlisted in the Regular Army on 31 July 1974 and he held military occupational specialty 94B (Food Service Specialist).  He was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  He was assigned to Fort Polk, LA.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 6 September 1974, for failing to go at the prescribed time to his appointed place of duty
* On 11 June 1976, for failing to go at the prescribed time to his appointed place of duty on two occasions

5.  His records contain DA Forms 4187 that show his duty status as follows:

* 20 - 23 August 1976, absent without leave (AWOL)
* 16 September - 17 October 1976, AWOL

6.  On 17 November 1976, his immediate commander notified him that discharge action was being initiated against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13.  The commander cited the specific reasons were the two Article 15's the applicant received, his repeated AWOL, and his extremely poor attitude and appearance.  

7.  On 17 November 1976, he acknowledged notification of the proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He submitted a conditional waiver of his right to a hearing by a board of officers contingent upon receiving a general discharge.

8.  On 2 and 7 December 1976, his intermediate and senior commanders recommended approval of his discharge under the provisions of Army Regulation 635-200, chapter 13, with a general discharge.

9.  On 13 December 1976, the applicant received NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order.

10.  On 24 December 1976, the separation authority disapproved the request for the applicant's discharge and directed the applicant's case be referred to a board of officers.

11.  The board of officer proceedings is not available for review with this case.  However, his records contain a DA Form 2496 (Disposition Form), dated 7 February 1977, wherein the staff judge advocate stated "A board of officers convened on 27 January 1977 and, after presentation of the facts, recommended [the applicant] be eliminated from the service with an Under Other Than Honorable Conditions Discharge Certificate.  The board based their decision on the fact they felt [the applicant] had been a continuous problem through his actions of misconduct and he had shown no indication of improving."

12.  The separation authority subsequently approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13.  He directed the applicant be reduced to the lowest enlisted grade and receive an under other than honorable conditions discharge.  On 17 February 1977, the applicant was discharged accordingly.  

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, with an under other than honorable conditions characterization of service.  His completed 2 years, 5 months, and 15 days of creditable active service with 34 days of time lost due to AWOL.

14.  There is no indication he 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 13, in effect at the time, contained the policy and outlines the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  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.

17.  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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for failing to go to his place of duty on three separate occasions and for failing to obey a lawful order.  In addition, he went AWOL on two separate occasions.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20110013964





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ABCMR Record of Proceedings (cont)                                         AR20110013964



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