IN THE CASE OF:	  

		BOARD DATE:	    5 November 2013

		DOCKET NUMBER:  AR20130005026 


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 reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states he is providing a new argument that was not previously considered.

3.  The applicant provides a Standard Form 93 (Report of Medical History), dated 9 November 1981, and a certificate of marriage.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120006182, on 9 October 2012.

2.  As a new argument the applicant states:

	a.  He did do all the things that were stated.  On about 22 February 1981, he reenlisted for military occupational specialty (MOS) 91C (Clinical Specialist).  He was barred from reenlisting on 16 November 1981 but he had already reenlisted.  A lot of information was taken out of his records in front of him, including most of his medical records.  Only the derogative information was left in his records.  His records do not show that he attended sergeant (SGT) school, the medal he received when he made corporal, the recommendation he received while in the field, and what he did while in Korea.

	b.  In February 1981, before he reenlisted, he told his commander he was going to get married.  The commander and Staff Sergeant (SSG) JHT told him he could go home to get married.  Things changed when he didn't reenlist in MOS 11B (Infantryman).  He was told by his company commander that he couldn't do what the Infantry was doing so he was assigned to another detail.  

	c.  In April 1981, he was called at home twice and told to report to duty in 30 minutes.  He lived 45 minutes away so he was late both times.  Another time, he got off work at 0230 and was called to come back to work at 0330; he was late again.  He was absent from 23 to 28 July 1981, but he was not absent without leave (AWOL).  He had enlarged veins in his right leg and he called his commander to tell him he was in the hospital.  He was told to keep him informed.  On 30 July 1981, he had surgery for varicose veins at Kelly Hospital, West Point, NY.  He was under a doctor's care from 30 July to November 1981.  

	d.  On 18 September 1981, he left his duty station as the charge of quarters (CQ) runner and asked a SGT to stay at the CQ desk.  When the CQ SGT returned, he said he didn't give him permission to leave even though the other SGT was there.  On 21 September 1981, just 2 days before his wedding, he was told by the commander that he could not take leave to go home and get married.  After all the money they spent on the wedding, he felt it was too late to change the wedding date so he went AWOL to get married.  He also stayed for his wife's birthday on 18 October 1981.  In November 1981, he was informed he would be court-martialed and put out of the Army.

	e.  In January 1982, he loaned a friend his car and it broke down at a mall in Fayetteville, NC.  When he arrived there after a call from the police, the car trunk had stolen items in it and he was arrested.  He did not want to ruin his friend's career so he took the blame since he was already being processed out.  He didn't make it as a 91C but now he is in a church using the gifts and talent he was given to help people.

3.  The applicant enlisted in the Regular Army on 20 June 1978 and held MOS 11B.  He was assigned to the 1st Battalion, 504th Infantry Regiment, Fort Bragg, NC, on 23 February 1980.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 9 April 1981, for failing to report to his appointed place of duty
* 29 July 1981, for being AWOL from 23 to 29 July 1981
* 26 October 1981, for failing to report to his appointed place of duty
* 6 November 1981, for being AWOL from 23 September 1981 to 19 October 1981

5.  The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 16 November 1981, wherein his immediate commander recommended a Bar to Reenlistment be placed against him and stated his conduct and efficiency were unsatisfactory, he had no initiative, and he continually malingered.  On 25 November 1981, the approving authority approved the Bar to Reenlistment and it was placed in his records.

6.  On 8 January 1982, he was apprehended by civilian authorities for breaking and entering and he was taken into custody at the Cumberland County Jail, Fayetteville, NC.

7.  The facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) wherein it shows he was discharged on 27 January 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) for misconduct - frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service.  He completed 3 years, 5 months, and 21 days of net active service with 57 days of lost time.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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, commission of a serious offense, and abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on four separate occasions for failing to report to his appointed place of duty and for being AWOL on two occasions.  In addition, a Bar to Reenlistment was placed against him and he was apprehended by civil authorities for breaking and entering.  Accordingly, separation action against initiated against him.

2.  The complete facts and circumstances surrounding his discharge processing were not available for review in this case.  However, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Notwithstanding his contention that his immediate commander was against him after he reenlisted for an MOS other than 11B, he also stated that he did do all the things that were stated.  Although the applicant appears to believe the actions he took were justified, it appears the actions his immediate commander took against him were reasonable considering all the facts.

4.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120006182, dated 9 October 2012.



      __________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)                                         AR20130005026



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ABCMR Record of Proceedings (cont)                                         AR20130005026



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