IN THE CASE OF:	  

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20120001630 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was not given a fair chance.  He states he was, and is, a good, hard-working veteran.  He states he needs a chance to tell his side of the story, as he never had a chance before.  He concludes by stating his decisions were made by someone else.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Form 21-526 (Veteran's Application for Compensation and/or Pension)
* A statement of support

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 23 September 1980.  He attended and completed one station unit training (OSUT) at Fort Sill, OK.  Upon his completion of OSUT, he was awarded military occupational specialty 13B (Cannon Crewmember) and was reassigned to Headquarters and Headquarters Battery, 1st Battalion, 5th Field Artillery Regiment, Fort Riley, KS.  

3.  On 23 March 1981, he was promoted to the rank/grade of private 2 (PV2)/E-2.  

4.  His record contains a DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record – Part II), Record of Court-Martial Conviction).  This form shows he was charged, before a summary court-martial at Fort Riley, KS, with:

* 2 specifications of a single Charge of failing to obey the lawful order of a noncommissioned officer (NCO) on 5 September 1981 and 8 September 1981
* 1 specification of a single Charge of willfully disobeying the lawful command of a superior commissioned officer on 8 September 1981

5.  He was found guilty of the specifications and Charges, and on 16 September 1981, his sentence was adjudicated and approved.  He was sentenced to reduction to the rank/grade of private (PVT)/E-1, confinement at hard labor for  30 days, and the forfeiture of $334.00 pay for 1 month.  No other documents pertaining to his court-martial are available for review.

6.  Item 21 (Time Lost) of his DA Form 2-1 indicates he was imprisoned for       23 days, during the period 16 September 1981 through 8 October 1981.

7.  On 9 November 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly in command, for failing to obey a lawful order, and for displaying disrespect toward a senior NCO, on or about 28 October 1981.

8.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his DD Form 214 shows he was discharged on 8 December 1981, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), by reason of misconduct for frequent incidents of a discreditable nature with civil or military authorities.  This form further shows he was discharged in the rank/grade of PVT/E-1, and he was given an under other than honorable conditions discharge.  Item 29 (Dates of Time Lost During This Period) shows he had lost time from 16 September 1981 through 8 October 1981.  

9.  He provides VA Form 21-526, which shows he has submitted a claim to the VA for compensation and/or pension.

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

11.  The applicant provides a statement of support, dated 3 March 2011, wherein the principal of a school his child attended from 2007 to 2010 stated the applicant was very supportive of the school by acquiring donations of goods for the school from local businesses.

12.  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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Upon determination that a member is to be separated with a discharge under other than honorable conditions, the approving authority will direct reduction to the lowest enlisted grade.

13.  Army Regulation 635-200, 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.

14.  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 record is void of the complete facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, for misconduct for frequent incidents of a discreditable nature, and he was given an under other than honorable conditions discharge.

2.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  He demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his summary court-martial and NJP.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  

4.  He contends he was not given a fair chance and his decisions were made by someone else; however, his available record does not support his contention, and he failed to provide any evidence to support it.  He states he was, and is, a good, hard-working veteran.  He states he needs a chance to tell his side of the story, as he never had a chance before, yet he made no attempt to provide information to assist the Board members in understanding his story.  

5.  In view of the foregoing, there is an insufficient basis to grant relief in this case.

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)                                         AR20110020370



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ABCMR Record of Proceedings (cont)                                         AR20120001630



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