BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120007902 


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 discharge to an honorable discharge.

2.  The applicant states he was discharged for getting frostbite on his two big toes and the baby toe on the left foot during a training exercise in Germany. 

3.  The applicant did not provide any 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's records show he initially enlisted in the Regular Army (RA) on 14 September 1973.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  

3.  He served in Korea from May 1974 to May 1975 and he was honorably released from active duty on 12 September 1975.  He completed 2 years of creditable active service.  His DD Form 214 (Report of Separation from Active Duty) shows he was awarded or authorized the:

* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar

4.  He enlisted in the RA for 4 years on 12 October 1976 and he held MOS 64C (Motor Transport Operator) and 11B (Infantryman).  He served in Italy from       23 February 1977 to 11 April 1978 and Germany from 12 April 1978 to on or about 16 August 1979.

5.  In September 1977, he was recommended for permanent removal from the Personnel Reliability Program based on behavioral aberration (drinking, damaging government property, public intoxication, exposing himself in public, being prone to depression, being a security risk, and poor assimilation of duties). The removal from the PRP was ultimately approved by the appropriate authority.

6.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 3 April 1979 for failing to go at the time prescribed to his appointed place of duty.

7.  On 8 May 1979, he was apprehended by the Erlangen Military Police after a source revealed that he (the applicant) revealed to another Soldier that he knew there was a bomb in the barracks and the room it was in but was refusing to tell.  He was released shortly thereafter due to a lack of credible information.

8.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders 229-231, issued by Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, on 17 August 1979, ordering his discharge from the service on that date. 

	b.  A letter, dated 17 August 1979 , addressed from Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, notifying him of the reason for his separation as "Misconduct Frequent Incidents of a Discreditable Nature with Civil or Military Authorities." 
	c.  A properly-constituted DD Form 214 that shows he was discharged on 17 August 1979 under the provisions of paragraph 14-33b of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct (Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities) in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.  This form also shows he completed 2 years, 10 months, and 6 days of creditable active service during this period. 

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, 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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  

11.  Army Regulation 635-200, paragraph 3-7a, provides that 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. 

12.  Army Regulation 635-200, paragraph 3-7b, provides that 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’s record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 17 August 1979 under the provisions of paragraph 14-33b of Army Regulation 635-200 for misconduct with an under other than honorable conditions discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

3.  The applicant's contention that he was discharged due to frostbite is not supported by any evidence.  

4.  The available evidence shows a military career marred with misconduct that included one instance of NJP and a permanent removal from the PRP for various infractions.   As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.  Therefore, he is not entitled to relief.

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)                                         AR20120007902





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ABCMR Record of Proceedings (cont)                                         AR20120007902



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