IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20110023274 


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 in 1984 he was assigned to the Gorgas Medical Holding Detachment, Panama City, Panama pending a medical discharge when he got into a situation.  He was given the choice to serve 20 years in prison or to be discharged.  He was told that after 10 years he could have his discharge changed to an honorable discharge.

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

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 on 4 January 1979.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 12 August 1983, he was assigned to the Medical Holding Company, U.S. Army Medical Department Activity, Panama, pending a medical board.  The medical evaluation board (MEB) determined he suffered from hypertrophic cardiomyopathy, asymmetric septal hypertrophy without obstruction, and found him medically unfit.  The MEB recommended the applicant's referral to the physical evaluation board (PEB) for final disposition.

4.  A DA Form 199, dated 26 September 1983, reports that on that date, a PEB convened at Fort Gordon, GA to consider his case.  The PEB determined his medical and physical impairment existed prior to service (EPTS) and prevented reasonable performance of his duties.  The PEB concluded he was physically unfit for further service and recommended a combined disability rating of
20 percent (%) and recommended his separation from service with disability severance pay.

5.  On 24 October 1983, he provided a written statement of his nonconcurrence of the board's recommendation.

6.  On 2 November 1983, after reviewing his written appeal and evidence, the PEB adhered to the original findings.  He concurred with the PEB's original findings and recommendation on 7 November 1983.

7.  His record is void of the complete facts and circumstances that led his discharge.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 26 December 1979, for violating Article 134 by wrongfully possessing marijuana
* 18 April 1980, for violating Article 134 by wrongfully possessing 5.0 grams or less of marijuana
* 8 March 1983, for violating Article 123a for wrongfully and unlawfully making and uttering to the Army and Air Force Exchange Service bad checks
* 25 January 1984, for violation Article 91 by willfully disobeying a lawful order from a superior noncommissioned officer (NCO)

8.  His record shows he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge on 20 October 1986.  The case prehearing review shows:
	a.  On 28 February 1984, his unit commander advised him of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct - commission of a serious offense due to continued patterns of misconduct and associated rights.  It appears this action coincided with the vacation of his punishment (13 February 1984) for the Article 15 imposed on 25 January 1984.

	b.  On 28 February 1984, he acknowledged notification, consulted with legal counsel, waived a hearing by a board of officers, and did not submit a statement in his own behalf.  On the same day his unit commander recommended discharge.

	c.  On 15 March 1984, the intermediate commander recommended approval with an under other than honorable conditions discharge.

	d.  On 9 April 1984, the separation authority directed separation with an under other than honorable conditions discharge.

9.  He was subsequently discharged on 18 April 1984.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense with issuance of an under other than honorable conditions discharge.  He completed 5 years, 3 month, and 10 days of creditable active service with time lost from 4 April 1984 to 9 April 1984.

10.  On 29 February 1988, the ADRB, after carefully examining his record of service, determined the characterization of his discharge was both proper and equitable.  However, the Board determined that the authority, separation code, and reason for separation should be changed to Army Regulation 635-200, paragraph 14-12b; JKM; and misconduct - pattern of misconduct.  As a result, he was issued a DD Form 215 (Correction to DD Form 214) that changed the separation authority, separation code, and narrative reason for separation.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  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.

	b.  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.

	c.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states an enlisted member may not be referred for physical disability processing when action has been started that may result in his administrative separation with an under other than honorable conditions discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge was carefully considered and found to lack merit.

2.  Although a copy of his discharge packet is not available for review, the presumption of regularity must be applied.  The evidence of record shows that while assigned to a Medical Holding Company for medical processing he received NJP for willfully disobeying a lawful order.  He subsequently broke restriction and the suspended portion of his punishment was vacated.  He was eventually discharged due to misconduct.

3.  In accordance with Army Regulation 635-40, a member will not continue physical disability processing when action has been started which authorizes a characterization of service of under other than honorable conditions, as with a chapter 14 discharge.

4.  It is presumed he was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  The ADRB determined the authority and reason for his discharge should be changed to Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct.  As a result a DD Form 215 was issued.  Further, it appears his discharge accurately reflects his overall record of service.

5.  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)                                         AR20110023274



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ABCMR Record of Proceedings (cont)                                         AR20110023274



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