BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120011470 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that at the time of his military service he had not been formally diagnosed with mood disorder, which severely inhibited his daily function and interaction with others. 

3.  The applicant did not provide any additional documentary evidence in support of his request.

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.  On 27 November 1979, the applicant enlisted in the Regular Army.  He was trained in and awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).  The highest rank/grade he attained while serving on active duty was pay grade E-2.

3.  Between June 1980 and June 1981, the applicant received five nonjudicial punishments (NJP’s) for the following offenses:

* three incidents of failure to go at the prescribed time to his appointed place of duty
* disobeying a lawful order
* absent without leave (AWOL) from 1 to 9 December 1980

4.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was AWOL from:

* 6 to 10 July 1980
* 1 to 8 December 1980
* 15 December 1980 to 8 January 1981 
* 9 January to 18 February 1981
* 
5.  The applicant’s military record shows that he was counseled over 21 times for numerous offenses.

6.  A Report of Mental Status Evaluation, dated 26 February 1981, found the applicant behavior normal, thinking process clear, he was mentally responsible and able to distinguish right from wrong, and he met the retention standards.

7.  On an unknown date, the applicant was convicted of robbery and simple battery.  He was sentenced to 2 years probation and a $300.00 fine.  

8.  On 18 April 1981, the unit commander notified the applicant he was initiating separation action against him under the provisions of Army Regulation 635-200, chapter 14, for civil conviction and informed him of his rights available to him.  

9.  On 20 April 1981, the applicant acknowledged receipt of the notification and was advised by consulting counsel of the basis for the contemplated separation action, its effects and the rights available to him.  The applicant requested consideration of his case before a board of officers and to be represented by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a less than fully honorable discharge was issued to him.  He further acknowledged he understood that he may be ineligible for many benefits as a veteran under both federal and state laws.  
10.  The applicant was notified to appear before a board of officers to determine whether he should remain in the service or be administratively separated due to civil conviction before the expiration of his term of service.  The board convened and after reviewing the findings the board recommended that the applicant be eliminated from the service because of civil conviction under the provisions of Army Regulation 635-200, with the issuance of discharge under other than honorable conditions.

11.  The Commanding General approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, for civil conviction, that the applicant be reduced to the lowest enlisted grade, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

12.  Accordingly, on 15 July 1981, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, due to his civil court conviction with an under other than honorable conditions discharge.  He completed a total of 1 year and 5 months of active service with 44 days of time lost due to AWOL.  

13.  On 23 October 1981, the Army Discharge Review Board denied the applicant’s request for discharge.

14.  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 (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  

15.  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.


16.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows his discharge should be upgraded. 

2.  There is no evidence in his military record that indicates the applicant was suffering from a mood disorder or any other type of mental disorder.

3.  The evidence of record, however, does show the applicant was tried and convicted by civil court of robbery and simple battery, he was sentenced to 
2 years probation and $300.00 fine.  He also received five NJP’s and was formally counseled on 21 different occasions for numerous offenses.  These offenses were serious acts of misconduct.

4.  As a result, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.

5.  In view of the above, there is no basis for granting his 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)                                         AR20120011470



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ABCMR Record of Proceedings (cont)                                         AR20120011470



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