IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140001193 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states his "discharge" states it was under other than honorable condition; however, it was upgraded for Department of Veterans Affairs (VA) purposes.

3.  The applicant provides no additional 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 4 May 1976.  He completed training as a medical specialist.

3.  The applicant accepted nonjudicial punishment (NJP) on three separate occasions between 19 May 1978 and 20 November 1978 for the following offenses:

* Destroying a window at Storck Barracks by throwing an object through the window
* Failure to go to his appointed place of duty (two specifications)
* Sleeping on duty as charge of quarters runner
* Appearing at Headquarters Company, 1st Battalion, 6th Infantry in an unserviceable fatigue uniform
* Disobeying a lawful order from his superior noncommissioned officer (two specifications)

4.  On 24 January 1979, the applicant was convicted by a summary court-martial of the following offenses:

* Failure to go to his appointed place of duty (two specifications)
* Disobeying a lawful order from his superior commissioned officer
* Being drunk while on duty as charge of quarters runner

5.  The facts and circumstances surrounding the applicant's discharge are not available.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 12 April 1979, under the provisions of Army Regulation 635-200, paragraph 14-33b, due to misconduct.

6.  There is no evidence the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-200 (Personnel Separations) 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 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 considered appropriate.
	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 have been noted and his supporting evidence has been considered.

2.  His records show he accepted NJP on at least three separate occasions and he was convicted by a summary court-martial as a result of his numerous offenses.  In the absence of evidence to the contrary and considering the nature of his offenses, it is presumed the type of discharge he received properly reflects his overall record of service.

3.  The applicant has not shown error or injustice in the action taken by the Army in his case.  There is no evidence in his record showing that this discharge was ever upgraded as he contends.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140001193



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ABCMR Record of Proceedings (cont)                                         AR20140001193



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