IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110024766 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states he:

* should not have received the discharge he got
* was not discharged for being absent without leave (AWOL)
* was snowed in and could not return on time; he called his company commander and requested more leave
* brought proof from the Red Cross when he returned to his unit
* was court-martialed in Germany for fighting
* was injured off duty 

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim), dated 7 November 2011 

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 U.S. Army Reserve on 23 August 1976 for a period of 6 years.  He was ordered to active duty for training on 26 September 1976 and was awarded military occupational specialty 76D (materiel supply specialist).  He was released from active duty on 17 March 1977.

3.  On 3 January 1978, he was ordered to active duty for a period of 14 months and 8 days (no other information is available).  He arrived in Germany on 
30 January 1978. 

4.  On 11 April 1978, a bar to reenlistment was imposed against the applicant (no other details are available).

5.  In May 1978, nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order.

6.  In August 1978, NJP was imposed against him for disobeying a lawful order. 

7.  On 19 October 1978, he was convicted by a special court-martial of assault.  He was sentenced to forfeit $279.00 pay for 2 months, reduction to pay grade 
E-1, and to be confined at hard labor for 2 months.  He departed Germany on 
30 November 1978 to serve his sentence to confinement in the States.  On 
4 December 1978, the convening authority approved the sentence. 

8.  On 5 April 1979, he was convicted by a summary court-martial of being AWOL from 12 February to 2 March 1979.  He was sentenced to confinement at hard labor for 30 days.  On 5 April 1979, the convening authority approved the sentence. 

9.  His unit commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(1), for misconduct, due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  His commander stated:

	a.  The applicant's record reflects he had 3 courts-martial and 3 NJPs (he had also received an NJP in 1976).

	b.  The applicant was sent to the Retraining Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation.  However, his actions since his arrival precluded accomplishment of the objective as evidenced by the numerous discreditable incidents recorded by this cadre at the Retraining Brigade.

	c.  He had demonstrated little desire for returning to duty.

	d.  He had received counseling by members of the leadership team and members of the professional staff agencies.

	e.  In his opinion, the applicant possessed the mental and physical ability necessary to be an effective Solder, but his present record and his failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service.

10.  On 7 May 1979, after consulting with counsel, the applicant waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf.

11.  On 15 May 1979, the separation authority approved the recommendation and directed the issuance of an under other than honorable conditions discharge.

12.  On 17 May 1979, he was accordingly discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He had served a total of 1 year, 7 months, and 13 days of creditable active service with 84 days of time lost.

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

14.  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.  Paragraph 14-33b(1) provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  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.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

16.  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 contentions were carefully considered.  However, his record of service included two or three NJP's, one special court-martial conviction, and one summary court-martial conviction.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110024766



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ABCMR Record of Proceedings (cont)                                         AR20110024766



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