IN THE CASE OF:	  

		BOARD DATE:  29 May 2012

		DOCKET NUMBER:  AR20110021756 


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 that his under other than honorable conditions discharge be upgraded and that the narrative reason for separation be changed. 

2.  The applicant states, in effect, he believes the Army Discharge Review Board (ADRB) should have considered and analyzed more closely the exhibit submitted at the hearing.  He references the Army Board for Correction of Military Records (ABCMR) findings and ADRB Case Report and Directive, Part V, Section 2. C-5. He also states he believes he would have been recommended for a more favorable discharge if his company commander had been aware of these findings/issues prior to discharge. 

3.  Additionally, he states that he served proudly and if given the opportunity to serve his country he would do it again.  He believes he has paid for being absent without leave (AWOL) with his military confinement and as a result of being denied the opportunity to apply for Government jobs.  He also states he needs medical care but the Department of Veterans Affairs (VA) has denied him assistance.

4.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); ADRB Case Report and Directive; letter from the ABCMR Personnel Services Division (PSD), date stamped 20 February 1990; Letter of Commendation; medical treatment records; and a degree/certificate for completion of Business Management.  


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 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 30 May 1978 and upon completion of initial entry training he was awarded military occupational specialty (MOS) 16P (Air Defense Artillery Short Range Missile Crewmember).  He was later awarded MOS 16S (Man Portable Air Defense System Crewmember).  

3.  On 17 December 1981, he was discharged for immediate reenlistment.  On 
18 December 1981, he reenlisted for 3 years.  

4.  Statements of Counseling show the applicant was counseled on four occasions while serving in the rank of sergeant /E-5 for infractions that included failing to inspect a subordinate's room, failing to get up on time in the morning, being absent from a meeting, and being late to a meeting.

5.  On 12 July 1983, a representative from an automobile dealership contacted the applicant's first sergeant in reference to an overdue debt pertaining to the applicant.

6.  On 19 September 1983, he was found guilty by a summary court-martial, in accordance with his pleas, of three specifications of failing to go at the time prescribed to his appointed place of duty and two specifications of being AWOL.

7.  On 28 October 1983, he was found guilty by a summary court-martial, in accordance with his plea, of one specification of being AWOL.

8.  On 4 December 1983, a bar to reenlistment was approved against the applicant for the above misconduct.

9.  On 12 December 1983, the applicant was advised of his unit commander's intent to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b.  He was also advised of his right to:

* consult with legal counsel 
* present his case before a board of officers
* submit statements in his own behalf
* waive his rights in writing

10.  On 12 December 1983, he acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit statements in his own behalf.  

	a.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged that he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

   b.  He further acknowledged he understood that if he received a character of service of less than honorable he could apply to the ADRB or to the ABCMR for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded.

11.  On 12 December 1983, the applicant's immediate commander initiated separation action against him in accordance with chapter 14-12b, Army Regulation 635-200, due to misconduct-pattern of misconduct.  The commander cited as the bases for the proposed separation action the applicant's misconduct as evidenced by two summary court-martial convictions, letters of indebtness, and his inability to be at the appointed place at the prescribed time.

12.  On 19 December 1983, the applicant's intermediate commander recommended approval of the separation action.

13.  On 10 February 1984, the appropriate authority waived further rehabilitation requirements and approved the separation action under the provisions of Army Regulation 635-200, paragraph 14-12b, with an under other than honorable conditions discharge.  On 16 February 1984, he was discharged accordingly.  He completed 5 years and 6 months of active service and he had approximately 
75 days of lost time.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Misconduct - Pattern of Misconduct."  

14.  The ADRB denied his request for an upgrade of his discharge on 14 May 1985.

15.  He provided medical treatment records, dated between 2006 and 2011, that show he has been treated for medical conditions.  He also provided a certificate that shows he obtained a degree in Business Management and a letter of commendation that he received for exceptional performance as an assistant gunner during a training exercise.  

16.  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.  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.  

   a.  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.

   b.  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.

17.  The applicant made reference to an exhibit submitted at the ADRB hearing but, it is not clear what document(s) he is attempting to bring to the attention of this Board.  However, it appears he is referencing a positive urinalysis test for marijuana which was later found to be scientifically and legally deficient.  He also provided a letter from the ABCMR PSD, date stamped 20 February 1990, in which he was informed his case was favorably finalized on 27 September 1986 and the documents pertaining to his case were destroyed as instructed by the ABCMR.  It also appears that those documents were expunged from his record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting that his discharge be upgraded and the narrative reason for separation be changed.  

2.  It is acknowledged the applicant had a positive urinalysis test for marijuana which was later found to be scientifically and legally deficient.  Also, his contention that the ADRB should have considered and analyzed more closely the exhibit submitted at his hearing was noted.  However, there is no evidence in the available records that shows his discharge was based on the positive urinalysis test.  Rather, evidence shows his discharge was based on the fact that his record of indiscipline includes two court-martial convictions, counseling statements, indebtness, and approximately 75 days of lost time.  Therefore, his overall record of service did not support the issuance of a general or honorable discharge at the time and it does not support an upgrade of his discharge now.

3.  The evidence of record also confirms his separation processing for a pattern of misconduct was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Therefore, a change in the narrative for his separation is not warranted.

4.  He contends that he needs medical care but the VA denied him assistance.  However, there is no evidence that the applicant had been diagnosed with a medical condition that required medical treatment at the time of discharge.  Further, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain benefits from other agencies.

5.  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)                                         AR20110021756



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ABCMR Record of Proceedings (cont)                                         AR20110021756



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