IN THE CASE OF: BOARD DATE: 10 March 2011 DOCKET NUMBER: AR20100021880 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 under other than honorable conditions discharge to an honorable discharge. 2. He states he was made to do jobs that the doctor said he was not to do with a chipped bone in his foot and a broken leg with no pain medication. He cried all night because of the pain. He did not know about the Army Board for Correction of Military Records (ABCMR). 3. He provides a character reference letter. 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 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. On 31 May 1975, the applicant enlisted in the Delayed Entry Program and he enlisted in the Regular Army on 1 July 1975, for 6 years, in pay grade E-1. He completed training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic). 3. A DA Form 3349 (Medical Condition-Physical Profile Record), dated 23 September 1975, shows he was given a physical profile with a PULHES profile of 111111 for arthritis of the first metatarsal cuneiform joint of the left foot with pain and swelling. His assignment limitations were no marching over 3 miles and no running over 1 mile. He was found medically qualified for limited duty. 4. He was promoted to pay grade E-4 on 1 June 1977. He served in Korea from 7 January through 23 July 1978. 5. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UMCJ) on: * 1 September 1976 for disobey a lawful command from his superior noncommissioned officer (NCO) * 15 August 1977 for failing to go to his appointed place of duty and for being absent from his unit * 25 May 1978 for failing to go to his appointed place of duty * 12 June 1978 for violating a lawful general regulation * 23 June 1978 for failing to go to his appointed place of duty and violating a lawful general regulation 6. On 24 July 1978, he was convicted by a special court-martial of two specifications of violating a lawful general regulation during the month of May 1978 and one specification of breaking restriction on 4 July 1978. He was sentenced to reduction to pay grade E-1, a forfeiture of $100.00 pay for 3 months, and confinement at hard labor for 3 months. 7. On 31 July 1978, the convening authority approved the sentence and ordered it duly executed. 8. He accepted punishment under the provisions of Article 15 of the UCMJ, on 27 September 1978, for failing to obey a lawful order. 9. On 19 October 1978, the applicant's company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-33, for misconduct due to frequent incidents of a discreditable nature. The company commander stated the applicant's record reflected the highest rank he held was pay grade E-4 and that he had one court-martial and six punishments under Article 15. The applicant was sent to the brigade to receive correctional training and treatment necessary for him to return to duty as a well-trained Soldier with an improved attitude and motivation. However, the applicant's actions precluded the accomplishment of the objective as evidenced by his resumption of behavior, attitude, and ability. 10. On 31 October 1978, after consulting with counsel, the applicant acknowledged he understood the basis for the proposed separation action under the provisions of Army Regulation 635-200, chapter 14, and its effects. He waived his rights and elected not to submit a statement in his own behalf. 11. On 9 November 1978, the appropriate authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 12. He was discharged accordingly in pay grade E-1 on 14 November 1978, under the provisions of Army Regulation 635-200, paragraph 14-33b(1). He was credited with completion of 3 years, 3 months, and 5 days of net active service and 39 days of lost time. 13. On 16 August 1984, the Army Discharge Review Board denied his request for an upgrade of his discharge. 14. He provided a character reference letter attesting to him being an honest upstanding individual. The letter does not contain a statement recommending an upgrade of the applicant's discharge. 15. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Paragraph 14-33b of the regulation established the policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absent without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. Upon determination that a member was to be separated with a discharge certificate under other than honorable conditions, the convening authority would direct reduction to the lowest enlisted grade. 16. Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. 17. Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant entered an active duty status on 1 July 1975. In September 1975, he was diagnosed with arthritis of the first metatarsal cuneiform joint of the left foot with pain and swelling. He was found medically qualified for limited duty. Between September 1976 and September 1978 he received several punishments under Article 15 and 1 court-martial action. 2. The evidence also shows the applicant's company commander stated the applicant was sent to the brigade for the purpose of receiving correctional training and treatment; however, the applicant's actions after his arrival at the brigade precluded him from accomplishing the objective due to continued inappropriate behavior, attitude, and ability. Therefore, his misconduct diminished the quality of his service below that warranting a general or an honorable discharge. 3. His contentions and his character reference letter were considered; however, he has provided no evidence or a convincing argument to show his discharge should be upgraded or that it was unjust. 4. Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. He was properly discharged in accordance with pertinent regulations with due process. 5. In view of the foregoing, there is no basis for granting the requested relief. 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) AR20100021880 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100021880 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1