IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120010711 


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 honorable.

2.  The applicant states he got out of the Army because his sergeant kicked him. He also writes a 6-page statement wherein he says he served in the Army National Guard.  He contends that he deserves an honorable discharge because he was shot in the back of the head and was thrown into jail to die.  He was sexually abused and treated like trash.

3.  The applicant provides no additional documentation.

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.  In 1976, the applicant enlisted in the Michigan Army National Guard.  In 1979, he was ordered to involuntary active duty due to his failure to satisfactorily participate in unit training.

3.  On 26 September 1979, the applicant entered active duty as a U.S. Army Reserve (USAR) Soldier.  He held military occupational specialty 11B (Infantryman).  He was assigned for duty at Fort Campbell, Kentucky.

4.  On 23 October 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 15 to 21 October 1979.

5.  On 24 January 1980, the applicant was convicted by special court-martial of being AWOL from 10 to 29 December 1979.

6.  On 28 March 1980, the applicant was convicted by a summary court-martial of being disrespectful in language towards a noncommissioned officer; of disobeying lawful orders (three specifications); of using provoking words and gestures; and of communicating a threat.

7.  On 14 April 1980, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to frequent incidents of a discreditable nature.  The commander cited the applicant's two court-martial convictions and his NJP.  The applicant had been sent to the brigade for correctional training; however, upon return to his unit he demonstrated little desire for returning to duty.

8.  On 18 April 1980, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

9.  On 23 April 1980, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

10.  Accordingly, on 24 April 1980, the applicant was discharged under other than honorable conditions.  He had completed 3 months and 13 days of creditable active duty service and had approximately 106 days of lost time due to AWOL and confinement.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, and a pattern of misconduct and AWOL.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

13.  Army Regulation 635-200, paragraph 3-7a, states 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.

14.  Army Regulation 635-200, paragraph 3-7b, states 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 contends that his discharge under other than honorable conditions should be upgraded to honorable because his sergeant kicked him.  In effect, he argues that he was mistreated and abused while on active duty.

2.  The record shows the applicant received two courts-martial and one NJP within only a few months of his entry on active duty.  Clearly, this is frequent incidents of a discreditable nature.

3.  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.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The applicant has not provided any documentation or convincing argument showing that he was abused or otherwise mistreated while on active duty.  Furthermore, he has not shown that such treatment was the proximate cause for his receiving NJP and courts-martial.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120010711





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ABCMR Record of Proceedings (cont)                                         AR20120010711



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