IN THE CASE OF:	  

		BOARD DATE:	 15 November 2012 

		DOCKET NUMBER:  AR20120007994 


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 discharge under other than honorable conditions.

2.  The applicant states:

* he was told his discharge would be upgraded after a few years
* he is homeless

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 on 29 May 1979 for a period of 3 years.  He completed training and was awarded military occupational specialty 13B (cannon crewman).

3.  Between November 1979 and September 1980, he was counseled for various infractions which included:

* missing from formation
* found in billets during duty hours
* forging a profile on a sick call slip
* missing from place of duty
* failing to report to work on time
* below standard conduct and attitude
* poor attitude
* failing to report to extra duty

4.  On 18 June 1980, nonjudicial punishment (NJP) was imposed against the applicant for losing military property and being derelict in the performance of his duties.

5.  On 25 June 1980, NJP was imposed against the applicant for assault (two specifications).

6.  On 14 July 1980, a bar to reenlistment was imposed against the applicant.

7.  On 22 August 1980, NJP was imposed against the applicant for failing to repair (four specifications).

8.  On 22 August 1980, the unit commander initiated action to separate the applicant for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

9.  On 26 August 1980, the applicant consulted with counsel and he was advised of his rights.  He waived consideration of his case by a board of officers, waived a personal appearance, and waived representation.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also acknowledged that he might be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions and that he might expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

10.  On 3 September 1980, NJP was imposed against the applicant for breaking restriction.

11.  On 21 October 1980, the separation authority approved the board's recommendation and directed the issuance of a discharge under other than honorable conditions.

12.  On 7 November 1980, the applicant was accordingly discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-33b, due to frequent incidents of a discreditable nature with civil or military authorities.  He completed of 1 year, 5 months, and 9 days of creditable active service.

13.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b. 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.

	c.  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.



15.  The U.S. Army does not now have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told his discharge would be upgraded after a few years.  However, a discharge upgrade is not automatic.

2.  Since his record of service included numerous adverse counseling statements, a bar to reenlistment, and four NJP's, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20120007994



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ABCMR Record of Proceedings (cont)                                         AR20120007994



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