IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20110024844 


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 his commander was prejudiced against him, and his first period of service was honorable.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 August 1980
* DD Form 214 (Report of Separation from Active Duty) for the period ending 27 November 1978

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 initially enlisted in the Regular Army (RA) on 17 February 1976. He completed training and he was awarded military occupational specialty 63C (track vehicle mechanic).

3.  He was honorably discharged on 27 November 1978 for the purpose of immediate reenlistment.  He completed 2 years, 9 months, and 11 days of total active service, of which 2 years, 3 months, and 7 days was foreign service in Germany.

4.  He reenlisted on 28 November 1978.  He was assigned to Fort Stewart, GA.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

5.  His record further shows he was awarded the Army Good Conduct Medal, Expert Marksmanship Qualification Badge with Rifle, and 2nd Class (Marksman) Marksmanship Qualification Badge with Grenade Bar.

6.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 15 July 1977 for failing to go at the time prescribed to his appointed place of duty on 7 July 1977
* 10 October 1977 for missing unit movement through neglect on 
28 September 1977
* 10 November 1977 for failing to go at the time prescribed to his appointed place of duty on 5 November 1977
* 5 April 1979 for being absent without leave (AWOL) from 22 March to
3 April 1979
* 12 December 1979 for assaulting a noncommissioned officer and disobeying a lawful order on 19 November 1979
* 28 January 1980 for failing to go at the time prescribed to his appointed place of duty on 24 January 1980
* 12 March 1980 for failing to go at the time prescribed to his appointed place of duty on 4 March 1980

7.  On 21 April 1980, he again departed his unit in an AWOL status.  He returned to military control on 25 April 1980.

8.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders 160-19, issued by Headquarters, 24th Infantry Division (Mechanized), Fort Stewart, dated 12 August 1980, ordering his discharge from the Army, effective 18 August 1980. 

	b.  A DD Form 214 that shows he was discharged on 18 August 1980 as a private (PV1)/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(1), for misconduct – frequent incidents of a discreditable nature with military authorities, with an under other than honorable conditions character of service.  This form further shows he completed 1 year, 8 months, and 6 days of creditable active service during this period, with time lost from 22 March to 2 April 1979 and 21 to 24 April 1980.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  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 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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 18 August 1980 under the provisions of Army Regulation
635-200, paragraph 14-33b(1) for misconduct - frequent incidents of a discreditable nature with military authorities, with an under other than honorable conditions characterization of service.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  There is no evidence of record and the applicant provides none to show his commander was prejudiced against him.  In fact his record contains multiple instances of NJP throughout his entire service.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is no basis for granting the applicant an honorable or a general discharge.

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)                                         AR20110024844



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ABCMR Record of Proceedings (cont)                                         AR20110024844



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