IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120022188 


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 discharge under other than honorable conditions.

2.  The applicant states he wants his discharge upgraded for personal reasons and to obtain medical care at the Department of Veterans Affairs (DVA).

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 28 February 1978 for a period of 3 years.  He completed his training and was awarded military occupational specialty 36K (tactical wire operations specialist).

3.  Between October 1978 and June 1979, nonjudicial punishment (NJP) was imposed against him on three occasions for: 

* failure to repair
* use and possession of a marijuana cigarette
* failing to obey two lawful orders
 
4.  On 1 May 1979, he was convicted by a summary court-martial of being absent without leave from 26 January 1979 to 9 April 1979.  He was sentenced to be confined at hard labor for 21 days and to be reduced to E-1. 

5.  On 18 June 1979, he was convicted by a summary court-martial of using disrespectful language, failure to repair (two specifications), and disobeying a lawful order.  He was sentenced to be confined at hard labor for 30 days and to forfeit $279.00 pay per month for 1 month.  On 25 June 1979, the convening authority approved the sentence.

6.  His records contain a résumé of his discreditable acts which include:

* poor attitude
* failed inspection
* lack of motivation
* unshaven
* being late
* security violation
* missing meal formation
* not in proper uniform while on restriction
 
7.  On 26 June 1979, the unit commander initiated action to separate the applicant for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, due to frequent involvement in incidents of a discreditable nature with civil or military authorities.





8.  On 5 July 1979, the applicant consulted with counsel and he was advised of his rights.  He waived consideration of his case by a board of officers, waived a personal appearance, and waived representation.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also acknowledged that he might be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions and that he might expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

9.  On 9 July 1979, the separation authority approved the recommendation and directed the issuance of a discharge under other than honorable conditions.

10.  On 12 July 1979, he was accordingly discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-33b, due to frequent incidents of a discreditable nature with civil or military authorities.  He completed
1 year and 9 days of creditable active service with 116 days of lost time.

11.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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 include minor disciplinary infractions, a pattern of misconduct, 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.

	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 contends he wants his discharge upgraded for personal reasons and to obtain medical care at the DVA.  However, a discharge is not upgraded for the purpose of obtaining DVA benefits.

2.  Since his record of service included three NJP's and two summary court-martial convictions, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x ____  DENY APPLICATION









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)                                         AR20120022188





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ABCMR Record of Proceedings (cont)                                         AR20120022188



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