IN THE CASE OF:	  

		BOARD DATE:	  14 September 2012

		DOCKET NUMBER:  AR20120009227 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he would like to receive a copy of the Board's decision. 

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 12 September 1979.  He completed training and was awarded military occupational specialty 75D (personnel records specialist).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.
3.  A memorandum from the Mental Hygiene Consultation Services, 3rd Armored Division, subject:  Mental Hygiene Consultation Report (applicant's name and social security number), dated 15 April 1982, found the applicant appeared to be apathetic toward his marital problems that he felt were partially alcohol-related.  His concern over his marital, alcohol, and personal problems seemed to be secondary to his desire to get out of the service.  It was recommended the applicant be referred to the Community Alcohol Abuse and Control Program and that his service be evaluated by his command for criteria for separation from service.

4.  An AE Form 113-4 (Record of Informal Counseling Session), dated
19 April 1982, shows the applicant was counseled to leave his personal problems at home and not discuss them with incoming personnel.  The counselor noted his personal belief was that the applicant should be removed from the section and the U.S. Army as soon as possible.  The applicant responded that only by drinking could he relieve the tension so he could sleep at night.

5.  An Army and Air Force Exchange Service Deferred Payment Plan Program overdue notice, dated 27 April 1982, shows the applicant's credit limit was reduced and that he was currently overdue on his payments.

6.  On 5 May 1982, the applicant's immediate commander received a memorandum from the Hanau Community Commander that indicated the applicant was allegedly indebted for 1,417.50 Deutsche Marks, and that he was to report to the Housing Referral Office to resolve the matter.

7.  Records show a Bar to Reenlistment Certificate was imposed on the applicant on 16 June 1982.

8.  On 24 June 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 26 May to 3 June 1982.  

9.  The applicant's record contains statements from his first sergeant, executive officer, and commander attesting to his refusal of all attempts to help him resolve his indebtedness.  His commander further stated the applicant's unwillingness to improve his financial situation has been an embarrassment to the unit and the U.S. Army and he did not believe any further attempt at rehabilitation would be in the best interests of the U.S. Army.

10.  On 23 August 1982, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted personnel), chapter 14, for misconduct.

11.  On 24 August 1982, the applicant acknowledged receipt of the commander's notification.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by a separation board, waived personal appearance before a separation board, and elected not to submit a statement in his own behalf.

12.  The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.

13.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-200, chapter 14, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  The immediate commander remarked that the applicant had previously worked in the In/Out Processing Section and he was now working in the Personnel Records Division.  His immediate commander stated he had received formal counseling on several occasions but his actions precluded rehabilitation because the applicant was obviously resisting all rehabilitation attempts or would not produce the quality Soldier desired by the Army.

14.  On 2 September 1982, his intermediate commander recommended approval of the discharge action and a waiver of any further rehabilitative efforts.  He further stated the applicant had frequently been at odds with civil and military authorities and he had established a pattern of failing to pay just debts.  As such, he should be eliminated from the U.S. Army as soon as possible.

15.  On 20 September 1982, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

16.  The applicant was accordingly discharged on 1 October 1982.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge.  He completed 3 years and 13 days of net active service with 12 days of time lost.

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

18.  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 at the time 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 was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such were merited by the Soldier's overall record.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of service shows a history of misconduct that included negative counseling, indebtedness, a bar to reenlistment, and an AWOL offense.  Accordingly, his chain of command initiated separation action against him.  All 
requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's 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.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.

3.  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)                                         AR20120009227



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ABCMR Record of Proceedings (cont)                                         AR20120009227



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