IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110020340 


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 to an honorable discharge.

2.  The applicant states he was an outstanding Soldier.  He had a court-martial for being absent without leave (AWOL) and they ruled in his favor.  On a completed DD Form 293 (Applicant for the Review of Discharge from the Armed Forces of the United States) he states it was his understanding that after 2 years his discharge was supposed to be upgraded to honorable so he can receive his benefits.

3.  He provides:

* DD Form 293
* letter from the Army Review Boards Agency

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 Pennsylvania Army National Guard (PAARNG) on 28 August 1978.  He was ordered to active duty for training (ADT) and he entered active duty on 20 October 1978.  He was honorably released from ADT on 30 March 1979.  He was issued a DD Form 214 (Report of Separation from Active Duty) for this period of service.

3.  He was discharged from the PAARNG on 17 January 1980 with a general discharge and was apparently transferred to the U.S. Army Reserve (USAR).  He entered active duty on 18 January 1980 in pay grade E-2.  He served in military occupational specialty 11B (Infantryman).

4.  In a statement, dated 21 June 1980, the applicant’s company commander stated:

	a.  he felt the applicant was suitable for a chapter 5 discharge.  He lacked the emotional maturity to cope with the Army.  The applicant had considered going AWOL as a possibility.

	b.  Due to this and being a failure to report (FTR) for extra training and threatening to do so again, he restricted the applicant.  The applicant broke restriction the first day.  He saw the applicant had no apparent value to the Army and recommended a chapter separation.

5.  On 26 August 1980, he was convicted by a summary court-martial, pursuant to his pleas, of being AWOL from 11 July to 24 July 1980.  His sentence included reduction to pay grade E-1 and a forfeiture of pay for 1 month.

6.  On 5 December 1980, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully possessing an ounce, more or less, of marijuana on or about 3 December 1980.  He did not appeal the punishment.

7.  On 5 January 1981, the applicant’s company commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), 

chapter 14, for misconduct, frequent incidents of a discreditable nature with civil or military authorities.  The company commander stated the reasons for his proposed action were:

* a court-martial for previous 14 days of AWOL
* field grade Article 15 for wrongfully possessing marijuana while performing a vital mission
* FTR on 29 December 1980
* demonstrated lack of interest in the maintenance of good order and discipline

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 5 January 1981, shows the applicant's behavior was found to be normal, his level of alertness was fully alert, and his level of orientation was full oriented.  His mood was found to be level, his thinking process was clear, his thought content was normal, and his memory was good.  The examining physician, a medical doctor, found the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  He was also found to have met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

9.  On 5 January 1981, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He acknowledged he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 21 January 1981, the separation authority approved the applicant’s discharge from the Army and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 28 January 1981, he was discharged accordingly in the pay grade of E-1. He completed 11 months and 28 days of net active service with 13 days of time lost due to being AWOL.

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

13.  Army Regulation 635-200, chapter 14, paragraph 14-33b, in effect at the time, established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of 

misconduct, commission of serious offense, conviction 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.  An under other than honorable conditions discharge was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, stated 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 be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant entered on active duty in January 1980.  On 21 June 1980, the applicant’s company command felt the applicant lacked the emotional maturity to cope with the Army and he saw no apparent value to the Army in the applicant and recommended his separation.

2.  In August 1980, he pled guilty and he was convicted by a summary court-martial of 14 days of AWOL.  He was also punished under Article 15, UCMJ for wrongfully possessing marijuana in December 1980.

3.  On 5 January 1981, the applicant’s company commander initiated action to separate him for misconduct.  The separation authority approved the applicant’s discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He was discharged accordingly on 28 January 1981.

4.  He has not shown his 1981 discharge was unjust or in error.  He provided no evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

5.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

6.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to honorable.  The ABCMR also does not upgrade discharges based solely for or the purpose of an applicant qualifying for medical or other benefits administered by the Department of Veterans Affairs.

7.  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)                                         AR20110020340



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ABCMR Record of Proceedings (cont)                                         AR20110020340



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