BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120007904 


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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states that he was told that his discharge would be upgraded after 1 year and he has now been diagnosed with cancer.

3.  The applicant provides no additional documents with his application.

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, though somewhat incomplete, show that he enlisted in the Regular Army on 13 February 1979 for a period of 4 years and training as a wire systems installer/operator.  He completed his one-station unit training at Fort Gordon, Georgia and was transferred to Germany on 11 June 1979.  

3.  His records show that field grade nonjudicial punishment was imposed against him on 3 October 1979 and 10 September 1980 for being disrespectful in language towards a superior commissioned officer, being drunk and disorderly, and destruction of private property. 

4.  Although not explained in the available records, he was placed in the Army Confinement Facility in Mannheim, Germany on 4 February 1981, and on          12 February 1981, he was transferred to the Army Retraining Brigade at Fort Riley, Kansas.

5.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Atlanta, Georgia on 22 December 1981.  However, his records do contain a duly-authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged under other than honorable conditions at Fort Riley on 8 July 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) due to his frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 11 months, and 28 days of active service and had 148 days of lost time due to imprisonment.

6.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  Additionally, there was not then, nor is there now, any provisions for an automatic upgrade of such a discharge.

8.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  Paragraph 3-7b also 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  

2.  Accordingly, the type of discharge directed and the reasons are presumed to be appropriate when considering the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his misconduct and his undistinguished record of service during such a short period.  The applicant’s overall service simply does not rise to the level of an honorable discharge or a general discharge under honorable conditions.  Additionally, there was not then, nor is there now, any provisions for an automatic upgrade of such a discharge.

4.  Therefore, there does not appear to be any basis to grant his request for an upgrade of 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 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)                                         AR20120007904





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ABCMR Record of Proceedings (cont)                                         AR20120007904



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