IN THE CASE OF 

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120010493 


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.

2.  The applicant states that almost 32 years has passed since his discharge and he is eligible for an upgrade.  He goes on to state that he is now trying to better himself so as to lead a more productive life.

3.  The applicant provides no additional documents with his application and is incarcerated at the time of 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 enlisted in the Regular Army on 22 August 1980 for a period of    3 years, training as an infantryman, and assignment to Fort Hood, Texas.  

3.  He completed his basic training at Fort Jackson, South Carolina, and was transferred to Fort Hood on 7 October 1980 for his training and first assignment.

4.  His records show that nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 4 June to 11 June 1981. 

5.  On 6 August 1981, he was convicted by a summary court-martial of being AWOL from 10 July to 13 July 1981 and one specification of failure to repair.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of $334.00.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement.

6.  On 11 September 1981, NJP was imposed against him for failure to go to his place of duty.

7.  On 16 September 1981, NJP was imposed against him for disobeying a lawful order from a superior commissioned officer.

8.  On 18 September 1981, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on his involvement in frequent incidents of a discreditable nature with civil or military authorities.

9.  On 22 September 1981, after consulting with defense counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on     5 October 1981 and directed that he be discharged under other than honorable conditions.

11.  Accordingly, he was discharged under other than honorable conditions on    8 October 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 and 20 days of active service and had 30 days of lost time due to AWOL and confinement.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge, contending that the characterization of his discharge was hindering his employment.  On 31 January 1983, after considering all of the available evidence, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge.

13.  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 included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

14.  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.

15.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Based on his many incidents of misconduct, the characterization of his service was appropriate for the circumstances of his case.
 
3.  The applicant’s contention that he is eligible for an upgrade of his discharge based on the passage of 32 years has been noted and found to lack merit.  The passage of time has no bearing on the applicant’s service especially when there is no evidence of good post-service conduct.

4.  Therefore, there appears to be no basis for granting the applicant's 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)                                         AR20120010493





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ABCMR Record of Proceedings (cont)                                         AR20120010493



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