IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110022022 


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 change of his under other than honorable conditions discharge to a medical discharge.

2.  The applicant states he never received any sort of disciplinary action or reduction of rank.  He was to receive a medical discharge due to a bilateral foot condition and he was moved to a medical dorm at Fort Polk, LA, awaiting a medical discharge.

3.  The applicant provides no additional 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 (RA) on 2 February 1978 for a period of 4 years in the rank/grade of private (PV1)/E-1.  He completed training and was awarded military occupational specialty 19F (Tank Driver).  He was advanced to private first class (PFC)/E-3 on 1 December 1978.

3.  On 11 April 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty (morning formation) on 2 April 1979.  His punishment included reduction to private (PV2)/E-2 (suspended to 90 days).

4.  On 14 June 1979, his suspended reduction to PV2/E-2 was vacated and ordered duly executed.

5.  On 22 June 1979, he accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty (morning formation) on
7 June 1979.  His punishment included reduction to PV1/E-1.  On 22 June 1979, he appealed his punishment.  On 25 June 1979, his appeal was granted in part in that his reduction to PV1/E-1 was suspended for 120 days.

6.  On 5 July 1979, his suspended reduction to PV1/E-1 was vacated and ordered duly executed.

7.  On 24 July 1979, he accepted NJP under Article 15, UCMJ, for disorderly conduct (igniting fireworks in the company area) on 1 July 1979.

8.  On 15 August 1979, he accepted NJP under Article 15, UCMJ, for disobeying a lawful order from the company Charge of Quarters on 4 August 1979.

9.  On 21 August 1979, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-33b(1), for misconduct.  The company commander stated the applicant was an individual who required constant supervision for a job to be completed.  He had been counseled on numerous occasions which told him that the applicant had no self-discipline or respect towards anyone of authority.  The applicant could cause serious disciplinary problems that could result in an absent without leave status.  His record reflected four Article 15s.  He believed it would be in the best interest of the unit, the applicant, and the Army to discharge the applicant under Army Regulation 635-200, chapter 14, in an expeditious manner.

10.  On 21 August 1979, after consulting with counsel, the applicant acknowledged the proposed separation action and elected to have his case heard by a board of officers.

11.  On 14 September 1979, he accepted NJP under Article 15, UCMJ, for disrespectful behavior toward his superior commissioned officer and for willfully disobeying a lawful command from the same officer on 5 September 1979.

12.  On 24 October 1979, he waived consideration of his case by a board of officers and he accepted the chapter 14 elimination.

13.  On 24 October 1979, after consulting with counsel, the applicant acknowledged he was advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, for misconduct and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He further acknowledged he understood he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.

14.  On 29 October 1979, he was psychiatrically cleared for any action deemed appropriate by the command.

15.  On 30 October 1979, he further accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 17 October 1979 (motor pool guard) and 19 October 1979 (extra duty at battalion headquarters); and for disobeying a lawful order from a noncommissioned officer on 17 October 1979.  He elected to appeal the punishment and on 6 November 1979, the appeal was denied.

16.  On 2 November 1979, the convening authority, a major general, approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, with issuance of an under other than honorable conditions discharge and reduction to lowest enlisted grade.

17.  On 9 November 1979, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct, with an under other than honorable conditions discharge.  He completed 1 year, 9 months, and 8 days of creditable active service and no time lost.

18.  There is no evidence of record and the applicant did not provide any evidence of any medical condition that would have warranted consideration by a

medical board under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

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

20.  Army Regulation 635-200, 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 a 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.

21.  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.

22.  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.

23.  Army Regulation 635-40, in effect at the time, provided for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were not qualified for retention on active duty by reason of a physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 2 February 1978.  He was advanced to PFC/E-3 on 1 December 1979.  Between April 1979 and October 1979, he was punished under Article 15 on six occasions for multiple offenses of misconduct.  As a result, he was reduced to PV2/E-2 on     14 June 1979 and to PV1/E-1 on 5 July 1979. 

2.  On 21 August 1979, the applicant’s company commander initiated action to separate him for misconduct.  He stated the applicant was an individual who required constant supervision for a job to be completed.  He had been counseled on numerous occasions that indicated the applicant had no self-discipline or respect towards anyone of authority.  The separation authority approved the applicant’s discharge and directed the issuance of an under other than honorable conditions discharge.  He was discharged accordingly on 9 November 1979.

3.  He has not shown his discharge was unjust or in error and he did not mention any medical conditions he was experiencing at the time.  There is an absence of evidence to support his contentions for entitlement to a medical discharge.  There is no evidence he had any medical condition that would have amounted to a disability separation under the provisions of Army Regulation 635-40.  Therefore, he is not entitled to a medical discharge.

4.  He also provided no evidence or argument to show his discharge should be upgraded and his military record contains no evidence that would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or honorable 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.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110022022



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ABCMR Record of Proceedings (cont)                                         AR20110022022



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