IN THE CASE OF:	  

		BOARD DATE:  28 August 2012

		DOCKET NUMBER:  AR20120004138 


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 general, under honorable conditions.

2.  The applicant states he was misunderstood and wants to tell his side of the story.

3.  The applicant provides 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.  On 28 February 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 19E (Armor Crewman).

3.  The applicant accepted the following nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice:

	a.  24 October 1980: for reporting for extra duty while incapacitated due to alcohol consumption;

	b.  3 December 1980: for being disrespectful in language towards a superior noncommissioned officer;

	c.  6 July 1981: for failing to go to his appointed  place of duty at the time prescribed;

	d.  13 May 1982: for being drunk and disorderly in a public place;

	e.  2 July 1982: for being drunk and disorderly in a public place; and

	f.  7 February 1983: for failing to go to his appointed  place of duty at the time prescribed.

4.  On 7 December 1982, the applicant was convicted by a special court-martial of:

	a.  failure to report (three specifications);

	b.  being disrespectful (three specifications);

	c.  wrongful appropriation;

	d.  assault (two specifications);

	e.  communicating a threat; and

	f.  failure to obey an order.

5.  On 22 February 1983, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The commander cited the applicant's special court-martial and six NJP's as the bases for his recommendation to separate him.

6.  On 24 February 1983, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

7.  On 3 March 1983, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

8.  Accordingly, on 7 March 1983, the applicant was discharged under other than honorable conditions.  He had completed 2 years, 8 months, and 29 days of creditable active service, and had 101 days of lost time due to AWOL and confinement.

9.  On 14 October 1983 and again on 20 November 1986, the Army Discharge Review Board considered the applicant's request for an upgrade of his discharge within its 15-year statute of limitations.  The ADRB denied both requests, finding his discharge to be proper and equitable.

10.  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 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.

11.  Army Regulation 635-200, paragraph 3-7b, states 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 contends that his discharge under other than honorable conditions should be upgraded to general, under honorable conditions because he was misunderstood.

2.  The applicant's record contains 6 NJP's and a special court-martial.  This clearly shows his pattern of misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant has offered no evidence or convincing argument, other than to say he had been misunderstood.

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

7.  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)                                         AR20120004138





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ABCMR Record of Proceedings (cont)                                         AR20120004138



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