BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120010560 


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 review and upgrade of his under other than honorable conditions discharge.

2.  The applicant states that as he looks back on his military service, he wishes things could have been a lot different.  He adds that his health is failing.

3.  The applicant provides no additional documentary evidence in support 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 (RA) on 7 July 1977 for a period of 3 years.  He was awarded military occupational specialty 64C (Motor Transport Operator) and promoted to sergeant/pay grade E-5 on 13 June 1980.

3.  He reenlisted in the RA on 1 July 1980 for a period of 3 years.

4.  The applicant received nonjudicial punishment (NJP) for his misconduct on four occasions (i.e., on 18 December 1980, and 10 March, 30 October, and
18 December 1981) for:

* willfully disobeying a lawful order from a superior noncommissioned officer (NCO) and being derelict in the performance of his duties
* willfully disobeying a lawful order (on two separate occasions) and being disrespectful in language toward a superior NCO
* failing to be at his appointed place of duty
* willfully disobeying a lawful order and being derelict in the performance of his duties

5.  On 8 April 1981, the applicant's commander initiated a bar to reenlistment against the applicant.  The Acting Commander, 1st Infantry Division Artillery, approved the bar to reenlistment on 13 April 1981.

6.  On 13 April 1981, the applicant was convicted at a summary court-martial of the charge and two specifications of communicating a threat to injure a Soldier.  He was sentenced to reduction to pay grade of E-1, forfeiture of $334.00 pay for 1 month, and confinement at hard labor for 30 days.

7.  Four DA Forms 4187 (Personnel Actions) show the applicant was:

* confined by military authorities on 7 May 1981 and returned to his unit on 13 May 1981
* confined by civilian authorities on 28 November 1981 and returned to his unit on 8 December 1981

8.  On 29 June 1982, the applicant's company commander notified him that he was recommending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on conviction by a civil court of simple burglary on 26 April 1982.  The applicant was advised of his rights and the separation procedures involved.

9.  The applicant consulted with legal counsel and was advised of the rights available to him.

	a.  He requested consideration of his case by a board of officers, personal appearance before the board, and representation by military counsel.

	b.  The applicant and his counsel placed their signatures on the document.

10.  On 29 July 1982, the applicant was notified that a Board of Officers had been appointed to determine if he should be discharged.  He was advised of his rights, including his right to representation by counsel; examine and object to the introduction of real and documentary evidence; call witnesses on his own behalf and otherwise introduce evidence; cross-examine witnesses other than his own; and testify as a witness in his own behalf.

11.  On 13 August 1982, a Board of Officers convened to determine if the applicant should be discharged from the U.S. Army due to misconduct based on conviction by civil court.
	
	a.  The Summarized Record of Proceedings show the applicant was represented by counsel and that the applicant testified in his own behalf.  Two commissioned officers and an NCO from his unit also testified on behalf of the applicant.

	b.  The board found the applicant undesirable for further retention in military service because of conviction by civil court and a pattern of misconduct even after receiving rehabilitation at the Retraining Brigade, Fort Riley, Kansas.  The board recommended the applicant be discharged from the U.S. Army with an under other than honorable conditions discharge.

   c.  The applicant submitted a letter to the approving authority appealing the board proceedings.

12.  On 31 August 1982, the separation authority approved the board's recommendation for discharge of the applicant and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct with an under other than honorable conditions discharge.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 14 September 1982 under the provisions of Army Regulation 635-200, chapter 14, section III, for misconduct - civil conviction, with service characterized as under other than honorable conditions.  He had completed 5 years, 1 month, and 4 days of net active service this period.

14.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, 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, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  Chapter 3, 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.  Chapter 3, 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 discharge under the provisions of Army Regulation 635-200 based on misconduct - civil conviction was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable.

2.  The evidence of record shows that during the period of service under review the applicant received NJP on four occasions, a bar to reenlistment was imposed against him by his commander, he was convicted at a summary court-martial, and confined by both military and civilian authorities.  Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  
3.  The applicant's post-service regrets about his military service and his current medical condition were considered.  However, they are not a basis for upgrading a discharge.

4.  In view of the foregoing, there is no basis for granting the 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)                                         AR20120010252



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ABCMR Record of Proceedings (cont)                                         AR20120010560



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