Search Decisions

Decision Text

ARMY | BCMR | CY2005 | 20050015802C070206
Original file (20050015802C070206.doc) Auto-classification: Denied



                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050015802


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect, that he was wrongly discharged.  He
also states, that while he was serving in Germany he was unable to get
along with his commander, who had accused him of using an illegal
substance, which led to him being given nonjudicial punishment (NJP).

3. The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 September 1983, the date of his discharge from active
duty.  The application submitted in this case is dated 12 October 2005.

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 limitations 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's record shows that he enlisted in the Regular Army on  
3 February 1972.  He completed basic combat training and advanced
individual training, and was awarded the military occupational specialty
11B1P (Light Weapons Infantryman).  The highest rank he attained while
serving on active duty was Private First Class/pay grade E-3.

4.  On 3 February 1973, the applicant was absent without leave (AWOL) and
remained absent until on or about 26 February 1973.  On 20 March 1973, the
applicant accepted NJP under the provisions of Article 15, Uniform Code of
Military Justice (UCMJ), for being AWOL.  His punishment consisted of a
reduction to the grade of Private E-1, extra duty for 30 days, and
forfeiture of $125.00 per month for two months.


5.  On 4 June 1973, the applicant was derelict in the performance of his
duty in that he negligently failed to properly secure his weapon.  On 28
June 1973, the applicant accepted NJP under the provisions of Article 15,
UCMJ, for dereliction of duty.  His punishment consisted of forfeiture of
$75.00 for one month and
7 days extra duty.

6.  The applicant's records show that he was dropped from the rolls of the
Army on 1 November 1973 and he was never returned to military control since
that time.

7.  On 7 September 1983, the applicant was discharged from active duty for
misconduct and desertion.  He had completed 1 year, 8 months, and 4 days of
active service during this enlistment which was characterized as under
other than honorable conditions.  He had 481 days time lost before his
normal expiration term of service and 3,135 days time lost after his normal
expiration term of service.

8.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

9.  Army Regulation 635-200 (Personnel Separations), currently in effect,
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 serious offense, conviction by civil
authorities, desertion, or absences 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.  A discharge
under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his under other than honorable conditions
discharge be upgraded.

2.  Contrary to the applicant's contention, there is no evidence of record
that shows he accepted NJP for use of an illegal substance.

3.  While the applicant may not have liked how he was treated by his
commander, it does not justify or excuse his desertion.


4.  The applicant's discharge was accomplished in compliance with
applicable regulations and there is no indication of procedural errors or
injustice that would tend to jeopardize his rights.  The evidence provides
sufficient basis for an under other than honorable conditions discharge for
misconduct and desertion.  The applicant's records show that his service
was not satisfactory; therefore, he is not entitled to an honorable or
general discharge.

5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 September 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 6 September 1986.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___eem__  ___jcm__  ____jtm _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.




                                  __________John T. Meixell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015802                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]


Similar Decisions

  • ARMY | BCMR | CY2006 | 20060004374C070205

    Original file (20060004374C070205.doc) Auto-classification: Denied

    The applicant requests that his records be corrected by upgrading his discharge to honorable. Army Regulation 635-200 also states that an honorable discharge is a separation with honor. The Board notes the applicant's good conduct and efficiency during his initial training, and his service for the period January 1973 to March 1974, however, it does not negate his periods of AWOL and is insufficient to warrant the relief requested.

  • ARMY | BCMR | CY2001 | 2001052239C070420

    Original file (2001052239C070420.rtf) Auto-classification: Denied

    In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so. The applicant has not...

  • ARMY | BCMR | CY2003 | 03094310C070212

    Original file (03094310C070212.rtf) Auto-classification: Denied

    The application submitted in this case is dated 9 July 2003. The applicant was discharged on 27 June 1984. As a result, the Board further determined that there is no evidence provided which shows that it would 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.

  • ARMY | BCMR | CY2004 | 20040001518C070208

    Original file (20040001518C070208.doc) Auto-classification: Denied

    Prior to the period of enlistment under review, the applicant served in the Army National Guard from 2 April 1977 to 6 August 1979 in military occupational specialty (MOS) 13B (Cannon Crewmember) until he was ordered to active duty on 6 August 1979 for 20 months and 11 days in pay grade E-2. The board recommended that the applicant be separated from the service because of misconduct with an UOTHC discharge. Army policy states that a UOTHC discharge is normally considered appropriate, but a...

  • ARMY | BCMR | CY2007 | 20070002799

    Original file (20070002799.txt) Auto-classification: Denied

    The applicant states that he received an honorable discharge for his first tour of service and that his service record does not reflect his first honorable characterization of service. The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged with an under other than honorable conditions discharge. The applicant contends that his discharge should be upgraded because his first period of service was...

  • ARMY | BCMR | CY2007 | 20070000950C071029

    Original file (20070000950C071029.doc) Auto-classification: Denied

    On 6 March 1973, the applicant was discharged, with a discharge characterized as under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-206. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 March 1973; therefore, the time for the applicant to file a...

  • ARMY | BCMR | CY2012 | 20120007330

    Original file (20120007330.txt) Auto-classification: Denied

    On 4 March 1983, his command initiated separation action for a pattern misconduct under Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14. The discharge authority approved the separation, granted the waiver of rehabilitative transfer, directed he be reduced to the lowest enlisted grade, and discharged with a UOTHC. The applicant was discharged UOTHC on 30 March 1983.

  • ARMY | BCMR | CY2005 | 20050002651C070206

    Original file (20050002651C070206.doc) Auto-classification: Denied

    On 5 November 1984, the applicant accepted nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty. He was advised by legal counsel of the basis for the contemplated action to separate him for misconduct, under Army Regulation 635-200, chapter 14, and of the rights available to him. On 13 June 1985, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635- 200, chapter 14-12b, for misconduct-pattern of...

  • ARMY | BCMR | CY2004 | 2004105344C070208

    Original file (2004105344C070208.doc) Auto-classification: Denied

    The applicant provides: a. He was separated by reason of "misconduct – pattern of misconduct" with a general discharge. Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 February 1984, the date of his separation with a general discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 February 1987.

  • ARMY | BCMR | CY2006 | 20060015921

    Original file (20060015921.txt) Auto-classification: Denied

    RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 April 2007 DOCKET NUMBER: AR20060015921 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. The applicant requests, in effect, that his under other than honorable conditions discharge be upgraded to honorable. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade...