IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110015320 


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.  He states his discharge should be upgraded based on his mental condition at the time of his separation from the Army.  He was not aware that the type of discharge he received would bar him from receiving Department of Veterans Affairs (VA) benefits.  

3.  He provides:

* An extract of his military medical records
* 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.  His record shows he enlisted in the Regular Army on 21 September 1978.  After the completion of training, he served in military occupational specialty 11B (Infantryman). 

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) does not show any special recognitions or significant accomplishments.  Item 18 (Appointments and Reductions) of this form shows private first class/E-3 was the highest rank he attained while serving on active duty.  

4.  The applicant was administered nonjudicial punishment on 1 May 1979 for using disrespectful language toward his superior noncommissioned officer.
 
5.  The applicant’s medical records indicate he was admitted to the hospital on 
8 October 1979 for a neuro-psychiatric evaluation.  The psychiatrist’s final diagnosis showed:

* Probable personality disorder
* Status post-abdominal surgical procedure for his hernia
* Superficial mycosis of axillae

6.  On 18 October 1979, he was tried by summary court-martial and was sentenced to 30 days military confinement for the following offenses:

* Disobeying a lawful order to get off the examining table at a military medical facility on 8 October 1979
* Behaving disrespectfully to a commissioned officer by not standing at the position of attention and failing to salute
* Elbowing his way through a military formation which caused a breach of peace  

7.  On 19 December 1979, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of paragraph 14-33, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct – frequent incidents.  His commander submitted a document entitled “resume” which listed multiple infractions the applicant had committed during the period 18 October through 21 December 1979.  The infractions included:

* Behaving in a belligerent manner
* Disrespecting a noncommissioned officer
* Failing inspection on several occasions
* Being late for formation
* Returning late from pass
* Sleeping during class

8.  On 27 December 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel he completed an election of rights in which he requested consideration of his case by a board of officers, personal appearance before a board of officers, and consulting counsel.  He also elected not to submit statements in his own behalf.  

9.  On 22 January 1980, a board of officers convened to consider the applicant's elimination, with the applicant and his counsel present.  A copy of the findings and recommendations are not available for the ABCMR’s review; however, a document dated 24 January 1980 shows the report of proceedings were administratively correct and legally sufficient. 

10.  On 28 January 1980, the separation authority approved the findings and recommendations of the board of officers in the applicant's case, and directed that the applicant be discharged under the provisions of paragraph 14-33b(1), Army Regulation 635-200 and be issued an under other than honorable conditions discharge certificate.  
 
11.  His medical record shows he was admitted to the hospital on 8 February 1980 and underwent umbilical hernia surgery three days later.  

12.  His DD Form 214 shows he was discharged on 22 February 1980, under the provisions of paragraph 14-33b(1) of Army Regulation 635-200, for frequent involvement in incidents of a discreditable nature with civil or military authorities. by reason of misconduct.  He had completed 1 year, 4 months, and 10 days of net active service and had 22 days of lost time due to military confinement.  

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

   a.  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, convictions by civil authorities, desertion or absence without leave.  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.  However, the separation authority could have directed a general discharge if such was merited by the Soldier’s overall record.  
   
	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

   c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions was issued only when the reason for the Soldier’s separation specifically allowed 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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  His medical record does not link his mental condition at the time with his multiple disciplinary infractions.  He was tried by a summary court-martial, was sentenced to military confinement, and repeatedly conducted himself in an unprofessional manner.  The applicant’s commander recommended discharge under the provisions of chapter 14 of Army Regulation 635-200 for frequent involvement in incidents of a discreditable nature.

4.  The evidence shows he appeared before a board of officers; was represented by counsel; and that the board considered his entire military record.  A summary of the board proceedings were not available for review; however, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  Based on this 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 honorable or general discharge.

6.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20110015320





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ABCMR Record of Proceedings (cont)                                         AR20110015320



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