IN THE CASE OF:	  

		BOARD DATE:	    12 April 2012

		DOCKET NUMBER:  AR20110020370 


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 discharge under other than honorable conditions to a general discharge
* restoration of his rank to specialist four (SP4)/E-4

2.  The applicant states he was offered the chance to reenlist after his tour of duty.  He did nothing to deserve the under other than honorable conditions character of service he was given.  He had to be at home with his mother when she became ill.  He asked for permission to leave to take care of her, but he was turned down.  He had plenty of leave and there were enough unit personnel to continue the mission.  His records should show he had time for leave, was afforded the opportunity to reenlist, and he was up for promotion at the time of his discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a statement of support.

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's records show he enlisted in the Regular Army on 30 July 1979 and he held military occupational specialty 72E (Tactical Telecommunications Center Operator).  He was assigned to the 501st Signal Battalion, 101st Airborne Division, Fort Campbell, KY.  He was promoted to the rank/grade of SP4/E-4 on 1 February 1981.

3.  On 23 June 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for two counts of failing to go to his prescribed place of duty on 13 and 14 May 1981.  The NJP imposed was a reduction to the rank of private first class (PFC)/E-3 (suspended until 23 July 1981) and 14 days of extra duty.

4.  On 24 August 1981, he received NJP under the provisions of Article 15, UCMJ, for two counts of failing to go to his prescribed place of duty on 22 July and 11 August 1981 and for missing movement on 27 July 1981.  The NJP imposed was a reduction to the rank of PFC/E-3, forfeiture of $142.00 for 1 month, and 14 days of extra duty.  He was reduced to the rank of PFC/E-3 on 25 August 1981.

5.  On 30 October 1981, he received NJP under the provisions of Article 15, UCMJ, for two counts of failing to go to his prescribed place of on 16 and 17 October 1981, disobeying a lawful regulation on 16 October 1981, and disobeying a lawful order on 17 October 1981.  The NJP imposed was a reduction to the rank of private (PV2)/E-2, forfeiture of $100.00 for 1 month, and 14 days of extra duty.  He was reduced to the rank of PV2/E-2 on 30 October 1981.

6.  On 25 November 1981, he was reported as absent without leave (AWOL) by his assigned unit.  On 10 December 1981, he was reported as present for duty.

7.  On 14 December 1981, he was reported as AWOL by his assigned unit.

8.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his DD Form 214 shows he was discharged under other than honorable conditions while in an AWOL status on 7 January 1982 in the rank of private (PV1)/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, by reason of misconduct for frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 3 months, and 27 days of creditable active service with 40 days of time lost due to AWOL.

9.  Item 21 (Signature of Member Being Separated) contains the entry "Separatee Unavailable for Signature" and item 29 (Dates of Time Lost During this Period) shows, in part, the entry "19811214-19820107."

10.  His record is void of any evidence that shows he requested leave due to a family illness.

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

12.  The applicant provides a statement of support, dated 3 March 2011, wherein the principal of a school his child attended from 2007 to 2010 stated the applicant was very supportive of the school by acquiring donations of goods for the school from local businesses.

13.  Army Regulation 635-200 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Upon determination that a member is to be separated with a discharge under other than honorable conditions, the approving authority will direct reduction to the lowest enlisted grade.

14.  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.

15.  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 applicant's record is void of the complete facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged under other than honorable conditions in the rank of PV1 under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct for frequent incidents of a discreditable nature.

2.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  He demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on three occasions for failing to report to his prescribed place of duty on six occasions, missing movement, disobeying a lawful regulation, and disobeying a lawful order.

4.  In addition, he was AWOL from 25 November to 9 December 1981, again was AWOL on 14 December 1981, and he was in an AWOL status when he was discharged from active duty.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  With respect to his request to have his rank of SP4 reinstated, he was discharged under other than honorable conditions in the rank of PV1/E-1 as required by Army Regulation 635-200.  Therefore, he is not entitled to 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 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)                                         AR20110020370



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ABCMR Record of Proceedings (cont)                                         AR20110020370



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