IN THE CASE OF: 

		BOARD DATE: 16 October 2012

		DOCKET NUMBER:  AR20120007444


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states that because of an injury to his leg, he was unable to perform his duties in the Retraining Brigade.  The injury led to his dishonorable discharge.  If the injury had not happened, his discharge would have been more favorable.  Since his discharge, he has been faithful to his society and to his fellow citizens.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 24 November 1983 and a Certification of Military Service from 30 November 1977 through 15 July 1981 showing that service was terminated by an Honorable Discharge.

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 30 November 1977.  He completed training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  He reenlisted on 16 July 1981.

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 6 January 1983 for failing to go to his place of duty and willfully disobeying a lawful order from his superior noncommissioned officer to not drive his privately owned vehicle without the proper driver's license.

4.  On 29 July 1983, the applicant was convicted by a summary court-martial of:

* failing to go at the time prescribed to his place of duty
* willfully disobeying a lawful order from his superior noncommissioned officer
* operating a privately owned vehicle without a valid operator's license
* operating a passenger car while drunk

5.  On 14 October 1983, he was convicted by summary court-martial of:

* being disrespectful to a commissioned officer
* disobeying an order from his superior noncommissioned officer (two specifications)

6.  He was sentenced to confinement at the U.S. Army Confinement Facility (Retraining Brigade), Fort Riley, KS, for a period of 30 days.  His record shows that while in the Retraining Brigade he:

	a.  received numerous negative comments on his Training Progress Notes and Daily Inspection Checklists; and

	b.  was recommended for recycle because he was in the hospital from 
30 August to 7 September 1983. 

7.  His medical records are not available for review.

8.  The applicant's discharge processing documentation is not available.  However, his DD Form 214 shows he was discharged on 24 November 1983, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, due to a pattern of misconduct.  He had completed 5 years, 10 months, and 10 days of total active service.  The character of his service is under other than honorable conditions.  His 
DD Form 214 shows in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) the Army Good Conduct Medal (First Award), Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  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.

	b.  Paragraph 3-7a states 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.

	c.  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.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR.  Paragraph 2-9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded.  If he had not injured his leg while in the Retraining Brigade, his discharge would have been more favorable.

2.  The applicant's record evidences chronic behavior problems which continued while he was in retraining.  There is no evidence that an injury had any effect on the characterization of his discharge.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.

4.  The applicant has not shown error, injustice, or inequity for the relief he requests.  Therefore, he is not entitled to 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)                                         AR20120004138



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ABCMR Record of Proceedings (cont)                                         AR20120007444



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