IN THE CASE OF:
BOARD DATE: 10 October 2013
DOCKET NUMBER: AR20130002567
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 his discharge under other than honorable conditions be upgraded to honorable.
2. The applicant states:
* he was in jail for speeding
* he was trying to get to work on time
* his first discharge was honorable
3. The applicant provides no additional documentary evidence.
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 9 November 1973 for a period of 4 years. He completed his training and was awarded military occupational specialty 63B (wheel vehicle mechanic). On 25 August 1977, he was honorably discharged for immediate reenlistment. He reenlisted on 26 August 1977 for a period of 3 years.
3. Between 26 September 1977 and 9 October 1979, nonjudicial punishment (NJP) was imposed against him on five occasions for:
* being absent without leave (AWOL) from 7 to 8 September 1977
* failure to repair and failing to obey a lawful order
* being AWOL from 3 to 9 April 1979
* failure to repair (3 specifications)
* failure to repair
4. On 29 October 1979, he pled guilty in civil court to the charge of driving with a revoked license (3rd offense) and he was sentenced to 2 years in prison.
5. In April 1980, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations) due to conviction by a civil court.
6. On 11 April 1980, he consulted with counsel and requested consideration of his case by a board of officers.
7. On 30 June 1980, a board of officers convened and the applicant appeared with counsel. The board of officers found the applicant unfit for further military service and recommended the issuance of an under other than honorable conditions discharge.
8. On 22 July 1980, the separation authority approved the board's recommendation.
9. He was discharged under other than honorable conditions on 12 September 1980 under the provisions of Army Regulation 635-200, chapter 14, due to conviction by a civil court. He served a total of 6 years, 2 months, and 23 days of creditable active service with 188 days of lost time.
10. In 1986, the Army Discharge Review Board denied his request for a discharge upgrade.
11. Army Regulation 635-200 currently in effect, 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 (military or civilian 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's contentions were carefully considered. However, his record of service during his last enlistment included five NJPs and 188 days of lost time. He also committed a serious civil offense while in the Army. As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
3. In view of the foregoing, there is no basis for granting the applicant's request for an honorable or a general 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) AR20130002567
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