RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 November 2003
         DOCKET NUMBER: AR2003088648


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul Wright		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests a change of discharge from general to honorable.

2. The applicant states he reenlisted for Germany, but his unit reenlistment non-commissioned officer (NCO) lied to him about going back to Germany just to get him to sign up for reenlistment. The Army tried to send him to Fort Irwin, California, but he refused the transfer. His military record was excellent until he tried to reenlist for Germany [i.e., his initial period of service]. After that, he steadily lost rank until final discharge. He adds that his misconduct occurred off base with non-military personnel. His morale went down hill and he got forced out of the Army with the understanding that a chapter 14 (misconduct) discharge would automatically become honorable after 6 months.

3. The applicant states that he just found out on 17 March 2003 that his discharge was still less than honorable.

4. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error and injustice which occurred on 14 July 1981, the date of his discharge. The application submitted in this case is dated 18 March 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant had a prior enlistment during which he had two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, and 7 days of lost time before reenlisting on 28 July 1980 for a period 3 years. His enlistment contract specified he was reenlisting for his present duty assignment and his own vacancy with no guaranteed stabilization. Additionally, he elected a lump sum reenlistment bonus and had an approved waiver for the 7 days of lost time.

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4. On 19 December 1980, the applicant accepted NJP for failing to go to physical fitness training and work formation on 26 November 1980. Punishment included reduction to pay grade E-3, forfeiture of $148.00 pay per month for 1 month, restriction for 14 days, and extra duty for 14 days.

5. On 22 January 1981, the applicant accepted NJP for leaving his place of duty on 31 December 1980, for failing to go to duty on 1, 2, 3, and 4 January 1981, and for breaking restriction on 1, 2, 3, and 4 January 1981. Punishment included reduction to pay grade E-2 and forfeiture of $75.00 pay per month for 1 month.

6. The discharge packet pertaining to the applicant's separation from the Army is not in his records. It appears that it was loaned to the Department of Veterans Affairs Regional Office, Waco, Texas, on 18 January 1982. However, the records do contain a properly executed DD Form 214, authenticated by the applicant's signature, that shows he was separated under the provisions of chapter 14, Army Regulation (AR) 635-200, for misconduct - frequent incidents of a discreditable nature with authorities.

7. On 14 July 1981, the applicant was separated with an Under Other Than Honorable Conditions discharge. He had 4 years, 7 months, and 21 days of active Federal service. He had 10 days of lost time. He had an award of the Good Conduct Medal.

8. On 14 July 1981, the applicant was given a letter, which he signed, advising of his rights to appeal his discharge to the Army Discharge Review Board (ADRB). There is no evidence that the applicant applied to the ADRB for 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, conviction by civil authorities, and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

10. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 149 requesting a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, were improper or inequitable.

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DISCUSSION AND CONCLUSIONS:

1. Contrary to the applicant's claim, there is no evidence in the record that he reenlisted for a tour of duty in Germany. The record shows that he specifically reenlisted for his present duty assignment and his own vacancy with no guaranteed stabilization.

2. Contrary to the applicant's claim that he suffered a reduction per week until discharged, the record shows that his reductions occurred over several months of misconduct.

3. The applicant's claim that his record was excellent until he wanted to reenlist for Germany is not supported by the record. He had two NJP actions and 7 days of lost time in his initial enlistment, and two NJP actions and 10 days of lost time in the period under review.

4. There is nothing in the applicant's record to show that his recorded misconduct was with non-military personnel while off base.

5. The applicant's claim that he just found out on 17 March 2003 his discharge was less than honorable is not supported by his own statement wherein he had the understanding his discharge would be automatically upgraded after 6 months. Additionally, he signed a statement at the time of his discharge that he had been advised about applying for an upgrade to the ADRB. Also, his own copy of his DD Form 214 that he provided to the Board specifically indicates in Item 24 that the character of his discharge was Under Other Than Honorable Conditions.

6. Records show the applicant should have discovered the error or injustice now under consideration on 14 July 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 July 1984. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__jns___ __mdm___ __bje___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.



                           John N. Slone
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088648
SUFFIX
RECON
DATE BOARDED	20031118
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19810714
DISCHARGE AUTHORITY	AR 635-200, Chap 14
DISCHARGE REASON	A64.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6400
2.
3.
4.
5.
6.