IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120002509 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded because he has medical conditions that need attention. 

3.  The applicant provides no additional documents with his application.

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 16 November 1977 for a period of 4 years, airborne/infantry training and a cash enlistment bonus.  He completed his basic training at Fort Dix, New Jersey and his advanced individual training and airborne training at Fort Benning, Georgia before being transferred to Fort Stewart, Georgia for his first duty assignment.  

3.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 22 July 1983.

4.  On 9 July 1984, while stationed at Fort Bragg, North Carolina, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for acts or patterns of misconduct.  He cited a Criminal Investigation Command (USACIDC, also known as CID) investigation which indicated that he had fraudulently received $8,972.61 in Basic Allowance for Quarters (BAQ) and dependent travel to which he was not entitled from 1979 to 1983.  (The applicant was divorced from his wife in 1979 and continued to claim benefits as if he was still married).

5.  After consulting with counsel the applicant elected to exercise his right to appear before a board of officers and to be represented by counsel.  He elected not to submit a statement in his own behalf.

6.  On 20 November 1984 the applicant appeared before a board of officers represented by counsel.  The board convened at 0900 hours and after hearing all of the testimony and evidence submitted, the board adjourned at 1630 hours.  After considering all of the evidence and testimony presented, the board found that he was undesirable for further retention and recommended that he be discharged under other than honorable conditions.

7.  The applicant filed an appeal of the findings and recommendations of the administrative separation board and on 20 December 1984, the appropriate authority (a major general) approved the findings and recommendations of the board and directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions on 23 January 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct – commission of a serious offense.  He had served 7 years, 2 months, and 8 days of active service.

9.  The applicant applied to the Army Discharge Review Board (ADRB) on 8 March 1985 contending that the conduct of the administrative separation board was suspect because it took recesses and reconvened on three occasions.  After reviewing all of the available evidence and the applicant’s records, the ADRB determined that the applicant’s discharge was both proper and equitable and voted unanimously to deny his request on 21 January 1986.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Accordingly, his discharge appropriately characterizes his record of service during the period in question.

2.  The applicant’s contentions have been noted and were found to lack merit.  The applicant violated the trust placed in him as a noncommissioned officer as evidence by his serious misconduct over a period of several years. Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.

3.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20120002509





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ABCMR Record of Proceedings (cont)                                         AR20120002509



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