IN THE CASE OF:	  

		BOARD DATE:	    12 December 2013

		DOCKET NUMBER:  AR20130007027 


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, in effect, that his discharge under other than honorable conditions, dated 16 February 1988, be upgraded to a fully honorable discharge. 

2.  The applicant states his discharge was based on unproven and unfounded reasons.  He was not afforded proper representation and a review of his records will show that he was a good Soldier. 

3.  The applicant provides no additional documents with his application. 

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.  After serving in the Regular Army from 1969 to 1972, the applicant again enlisted in the Regular Army on 30 March 1981.  He was promoted to the rank of sergeant on 1 March 1983.  On 20 March 1984, while stationed at Fort Carson, Colorado, he reenlisted for a period of 6 years, a selective reenlistment bonus, and assignment to Europe.  He was transferred to Germany in August 1984.

3.  On 27 April 1987, nonjudicial punishment (NJP) was imposed against the applicant for five specifications of failure to go to his place of duty.

4.  On 16 July 1987, NJP was imposed against him for two specifications of failure to go to his place of duty and assaulting another Soldier by stabbing him in the back, arm and chest and puncturing his lung.

5.  On 7 August 1987, he was convicted by a summary court-martial of disobeying a lawful order and disobeying a lawful command.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay.

6.  On 4 September 1987, the applicant’s commander notified him that he was initiating action to discharge him from the service based upon patterns of misconduct in accordance with Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14.  He cited as the basis for his recommendation that the applicant had NJP imposed against him twice and he had been convicted by a summary court-martial.  He advised the applicant of his rights, which included the right to consult with counsel. 

7.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 
4 January 1988 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 
16 February 1988 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He had served 6 years, 
9 months and 23 days of active service during the period under review for a total of 9 years, 4 months, and 25 days of total active service.

10.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  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.

	b.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

2.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant an upgrade of his discharge when considering his repeated misconduct and his rank at the time his misconduct began.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130007027





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ABCMR Record of Proceedings (cont)                                         AR20130007027



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