IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120005074 


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  He states while he was in the military he was being seen at the hospital for a bleeding ulcer which was subsequently diagnosed as Crohn's disease.

3.  He provides 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.  His military records show he enlisted in the Regular Army on 29 March 1977.  He completed training and was awarded the military occupational specialty of 94B (Food Service Specialist).  The highest rank/grade he held was private/E-2.

3.  His records show he was counseled on numerous occasions for breaking restriction, missing extra duty, missing formation, disobeying an order, driving without a license, failure to repair, and not being at his appointed place of duty.  He was also counseled for driving a 2 1/2 ton truck too fast in the motor pool and for failing to prepare the prescribed food as directed.    

4.  He accepted nonjudicial punishment (NJP) on nine occasions during the period 6 July 1977 to 3 May 1979 for:

* numerous incidents of failing to go to at the time prescribed to his appointed place of duty
* assaulting another Soldier by striking him with his fists
* wrongfully having in his possession a hand rolled cigarette of marijuana
* being incapacitated from intoxicating liquor for the proper performance of his duties as a cook and barracks orderly  
* being absent without leave (AWOL) during the period on or about 21 September to 4 October 1978
* breaking restriction

5.  On 13 June 1979, his commander notified him that he was being considered for elimination from the service for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14.  He was advised of his rights.

6.  On 14 June 1979, he was advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects, the rights available to him, and the effects of a waiver of his rights.  He requested consideration by a board of officers.  He chose not to submit a statement on his own behalf.

7.  A board of officers convened on 4 October 1979 for the purpose of determining whether the applicant should be separated for misconduct under the provisions of Army Regulation 635-200.  In view of the findings, the board recommended the applicant be discharged from the military because of misconduct with issuance of a under other than honorable conditions discharge. 

8.  On 29 October 1979, the separation authority approved the board's findings and recommendations for the applicant's discharge under provisions of Army Regulation 635-200, chapter 14.  He directed the applicant be given an under other than honorable conditions discharge.

9.  On 7 November 1979, the applicant was discharged under provisions of Army Regulation 635-200, chapter 14, for misconduct - established pattern of shirking with his service characterized as under other than honorable conditions.  He completed 2 years, 6 months and 21 days of net active service.  His DD Form 214 shows he had time lost during the periods of 14 August 1978, 21 September to 3 October 1978, and 12 October to 24 October 1978.

10.  On 27 October 1981, the Army Discharge Review Board denied the applicant's request to upgrade his under other than honorable conditions discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included acts or patterns of misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	b.  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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

c.  A general discharge is 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.

DISCUSSION AND CONCLUSIONS:

1.  He has not shown how being seen at a hospital for a bleeding ulcer which was subsequently diagnosed as Crohn's disease should excuse or mitigate his misconduct that led to his discharge.

2.  His records show he was counseled on several occasions and received NJP on nine occasions.  A board of officers recommended his discharge for misconduct.  He was discharged for misconduct - established pattern of shirking.
3.  The available evidence shows his rights were protected throughout the discharge process.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  He was properly and equitably discharged and therefore he is not entitled to a general or honorable 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)                                         AR20120005074



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ABCMR Record of Proceedings (cont)                                         AR20120005074



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