IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110018136 


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 his discharge be upgraded to a general or fully honorable discharge.

2.  The applicant, in a personal statement, apologizes for his misconduct while stationed in Germany and states that drugs and alcohol greatly contributed to his poor judgment.  Additionally he states:

* his mother had a nervous breakdown and he was placed in foster care, at age 13
* at age 16 he became involved with alcohol and drugs
* his early military service was exemplary
* he was sent to Germany prior to the birth of his son and he became angry and rebellious
* he also injured his ankle one night while drinking and using drugs
* as a civilian, he got help with his addictions, he has a job, and his own apartment

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a personal statement
* 4 letters from an employer – Department of Veterans Affairs (DVA) Louis Stokes Cleveland Medical Center
* a Certificate of Completion – Accelerated Academic Enrichment Program, Cuyahoga (OH) Community College
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 served honorably in the Regular Army (RA) from 9 September 1976 to 11 March 1979 when he was discharged for immediate reenlistment. 
On 12 March 1979, he reenlisted in the RA, in military occupational specialty 76P (Materiel Control and Accounting Specialist), in pay grade E-4.

3.  On 3 February 1984, he was discharged under other than honorable conditions under the provisions of chapter 14, Army Regulation 635-200, for misconduct – pattern of misconduct.

4.  The applicant's Official Military Personnel File does not contain his administrative separation packet.  However, it does contain numerous letters of indebtedness and four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

* willfully damaging private property on 4 September 1982
* leaving his place of duty without authority on 23 December 1982
* being drunk and disorderly in public on 14 April 1983 and being absent from his place of duty from 0500 hours to 1430 hours on 30 July 1983
* being drunk and disorderly in public on 16 July 1983

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

6.  Army Regulation 635-200 (Personnel Separations) 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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

7.  Army Regulation 635-200 provides guidance on characterization of service.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a disciplinary problem during his service in Germany.  He had 4 NJPs and numerous letters of indebtedness.  His chain of command referred him for administrative separation under chapter 14, Army Regulation 635-200.

2.  Although the facts and circumstances pertaining to the applicant’s discharge are not on file, his DD Form 214 indicates that he was discharged on 3 February 1984 for a pattern of misconduct under the provisions of Army Regulation 
635-200, chapter 14 and he was issued an under other than honorable conditions discharge.

3.  In the absence of evidence to the contrary the applicant's administrative separation is presumed to have been accomplished in compliance with applicable regulations, with no procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons are presumed to be appropriate considering all the facts of the case.

4.  While cognizance of the applicant’s good post-service conduct and accomplishments has been taken, these factors alone do not warrant the relief requested.


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)                                         AR20110018136



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ABCMR Record of Proceedings (cont)                                         AR20110018136



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