BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120005133 


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states:

	a.  He was assigned to Fort Meade, MD, on medical hold when he was convicted by a civil court.  He was not allowed to defend his discharge action and he was not present for signing.  He was on a permanent profile and his discharge was already in effect, but he got in trouble.  He was born with spina bifida and he never should have been allowed to enlist since he could not perform his duties in the field.  While lifting a foot locker in the field his back snapped out of place and he was referred for a medical discharge.  He was relieved of duty and given a UOTHC discharge.

	b.  He has been diagnosed as bipolar with manic depression which is another birth defect.  He did not know what he was doing at the time.  He feels that he was unjustly discharged as he was not convicted by a jury of his peers and 
he was discharged by one officer.

3.  The applicant provides no additional evidence.

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 (RA) on 18 January 1979 in pay grade E-1.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was advanced to the pay grade of E-3 on
1 November 1979.

3.  Orders 1-14, issued by the U.S. Army Medical Department Activity, Fort Meade, dated 28 March 1980, assigned him to the Medical Holding Detachment, Kimbrough Army Hospital, Fort Meade, effective 25 March 1980, for the purpose of pending medical board proceedings.

4.  On 30 June 1980, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his unit from 27 May to 18 June 1980.

5.  His record contains four DA Forms 268 (Report of Suspension of Favorable Personnel Actions), dated between July and December 1980, that show on:

* 7 July 1980, he was arrested on 3 July 1980 by the Pennsylvania State Police for burglary and an investigation was continuing
* 8 September 1980, the investigation continues; applicant still in the custody of the Pennsylvania civilian authorities
* 10 November 1980, the applicant was pending discharge for a civil conviction
* 4 December 1980, the applicant is being held in the Huntington County Jail in Pennsylvania

6.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available record.  However, his record contains 

a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 9 December 1980 in the grade of E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for misconduct – conviction by civil court with a UOTHC discharge.  He completed 1 year, 4 months, and 24 days of creditable active service with 178 days of time lost.

7.  In a letter, dated 9 December 1980, the Officer in Charge, Separation Transfer Point, provided the Huntington County Jail warden a copy of the applicant's DD Form 214, for delivery to the applicant, announcing his discharge from the RA.

8.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A UOTHC discharge was normally appropriate.  

	b.  Paragraph 3-7a stated an honorable discharge was a separation with honor.  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 be inappropriate.

	c.  Paragraph 3-7b stated 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 3 July 1980 the applicant was arrested for burglary and subsequently convicted sometime in December 1980 in the State of Pennsylvania.

2.  His record is void of the specific facts and circumstances leading to his discharge.  However, his DD Form 214 shows he was discharged on
9 December 1980 under the provisions of Army Regulation 635-200, chapter 14, for misconduct – conviction by a civil court.  On the same day, a copy of his
DD Form 214 was forwarded to the warden of the Huntington County Jail for delivery to the applicant.

3.  His contentions have been considered; however, he has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

4.  Based on the authority and narrative reason for separation, a UOTHC discharge was normally appropriate at the time.  Furthermore, it is presumed that his discharge accurately reflects his overall record of service during this period of service.

5.  In the absence of evidence to the contrary, Government regularity is presumed in the discharge process and it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20120005133



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ABCMR Record of Proceedings (cont)                                         AR20120005133



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