BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120004551 


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 discharge under other than honorable conditions.

2.  The applicant states his grandmother who raised him is deceased and he has hepatitis C.

3.  The applicant provides a medical record from the Forsyth Medical Center Emergency Department, dated 23 February 2012.

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.  He enlisted in the Regular Army on 23 November 1979.

3.  He accepted nonjudicial punishment (NJP) on:

* 29 January 1980, for being derelict in the performance of his duties
* 13 January 1981, for two specifications of failing to have his Armed Forces Liberty Card in his possession
* 9 June 1982, for failing to go at the time prescribed to his appointed place of duty
* 17 June 1982, for failing to obey a lawful order from a noncommissioned officer, being derelict in the performance of his duties, and wrongfully communicating a threat to a specialist four
* 29 June 1982, for wrongfully possessing marijuana
* 1 July 1982, for leaving his place of duty without authority

4.  On 15 July 1982, his commander notified him he was initiating separation action against him under the provisions of chapter 14 of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel) due to his patterns of misconduct.  He was also notified that the separation authority may direct issuance of an honorable discharge, a discharge under honorable conditions, or a discharge under other than honorable conditions.  He was advised that if he received a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life.

5.  The commander advised him of his right to:

* have his case considered by a board of officers
* appear in person before a board of officers 
* waive any of these rights
* withdraw any waiver of rights prior to the date the discharge authority directs or approves his discharge and request that his case be presented before a board of officers
* consult with counsel
* submit written statements in his own behalf
* obtain copies of documents that would be sent to the separation authority

6.  On 20 July 1982, after having consulted with counsel, the applicant submitted a statement:

* acknowledging that he had been advised by counsel of the basis for the contemplated action against him for misconduct under the provisions of chapter 14 of Army Regulation 635-200
* requesting consideration by a board of officers
* 
requesting a personal appearance before a board of officers
* stating he was not submitting statements in his own behalf
* requesting representation by counsel

7.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

8.  His commander recommended his discharge by reason of patterns of misconduct.

9.  On 21 July 1982, the applicant was absent without leave (AWOL).

10.  On 13 August 1982, a notification to appear before a board of officers on 30 August 1982 was sent to the applicant's last known address.

11.  On 30 August 1982, a board of officers met to determine chapter 14 discharge proceedings against the applicant.  It was noted that he waived his right to appear before the board because of being AWOL.  In addition, because he did not enter into a client/attorney relationship, Trial Defense Service refused to provide an attorney to represent him.

	a.  The board found the applicant was undesirable for further retention in military service because of misconduct.

	b.  The board recommended his discharge from the service with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  The general court-martial convening authority approved his discharge, waived a rehabilitative transfer and counseling, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 1 November 1982, he was discharged in absentia by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 7 months, and 28 days of net active service that was characterized as under other than honorable conditions.  He had 101 days of lost time.

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

15.  The medical record from the Forsyth Medical Center Emergency Department, dated 23 February 2012, shows he was diagnosed with hepatitis C.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions was issued only when the reason for the Soldier’s separation specifically allowed such characterization.

	c.  Paragraph 2-15 stated that when a member who was being processed for discharge under the provisions of chapter 14 was AWOL, his or her proceedings could be completed and his or her discharge could be executed notwithstanding such absence, provided the recommendation for discharge was approved by the commander exercising general or special court-martial jurisdiction, as appropriate, and provided the absence occurred subsequent to the date:

		(1)  the member exercised his or her rights with respect to consideration by a board of officers and personal appearance before the board with the advice or refused such advice or

		(2)  when a board hearing was not required for the separation action being processed or was waived or the member had acknowledged receipt of notification of proceedings and had exercised his or her right to advice of consulting counsel or refused such advice.  If the member elected a hearing by board of officers before his or her unauthorized absence, the hearing could proceed in his or her absence.

	d.  Paragraph 14-33 stated that members were subject to separation due to patterns of misconduct, including frequent incidents of discreditable nature with civil or military authorities.


DISCUSSION AND CONCLUSIONS:

1.  He was AWOL after being notified by his commander of being considered for discharge due to patterns of misconduct and exercising his right with respect to consideration by a board of officers and a personal appearance before the board.

2.  As provided for in the regulation, a hearing was held in his absence, the proceeding was completed, and his discharge was approved by the commander exercising general court-martial jurisdiction.

3.  Therefore, all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  He accepted NJP on six occasions and he had 101 days of lost time.  He was AWOL after he was notified of his discharge proceedings and he was discharged in absentia.  This clearly shows his service to be unsatisfactory.  Therefore, there is an insufficient basis to upgrade 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 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)                                         AR20120004551



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ABCMR Record of Proceedings (cont)                                         AR20120004551



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