IN THE CASE OF:	  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110015321 


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 at least a general discharge.

2.  The applicant states:

* He followed the rules and regulations but he was told he was unable to adapt to the service and he was not a good Soldier
* He did not cause any trouble
* He was unable to perform his duties but he was not a troublemaker
* He needs medical assistance from the Department of Veterans Affairs (DVA)

3.  The applicant provides no documentary 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 applicant enlisted in the Regular Army on 27 November 1979 for a period of 3 years.  He completed his training and he was awarded military occupational specialty (MOS) 13B (cannon crewman).

3.  Between 20 June 1980 and 17 November 980, nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant on three occasions for:

* Communicating a threat to injure
* Using disrespectful language (four specifications)
* Failing to repair 

4.  On 29 October 1980, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b, for misconduct due to frequent acts of misconduct resulting in disciplinary action and the establishment of a pattern of shirking job responsibility.

5.  On 29 October 1980, the applicant consulted with counsel and he was advised of his rights.  He waived consideration of his case by a board of officers, waived a personal appearance, and waived representation.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He also acknowledged that as a result of the issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

6.  The separation authority subsequently approved the recommendation for discharge for misconduct due to frequent incidents of a discreditable nature with civil or military authorities and directed the issuance of an under other than honorable conditions discharge.

7.  He was accordingly discharged on 5 January 1981 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b(1), for misconduct with an under other than honorable conditions discharge.  He completed 1 year,
1 month, and 9 days of creditable active service.


8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

	b. 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.  

	c.  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 he followed the rules and regulations and he was not a troublemaker.  However, evidence shows he received three NJPs for misconduct.

2.  He contends he needs medical assistance from the DVA.  However, a discharge is not changed for the purpose of obtaining DVA benefits.

3.  Since his record of service included three NJPs, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant’s record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.


4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110015321



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ABCMR Record of Proceedings (cont)                                         AR20110015321



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