RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 January 2007
	DOCKET NUMBER:  AR20060006092 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Bernard P. Ingold

Chairperson

Mr. Ronald D. Gant 

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, in effect, that his under other than honorable conditions discharge be upgraded to an honorable discharge 
 
2.  The applicant states, in effect, that he is now homeless and unable to find a job to make a basic living.  The applicant continues the he is suffering from the adverse consequences of his discharge and that under current standards he would not have received such a harsh discharge. 

3.  The applicant provides a four-page addendum and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 14 July 1980, the date of his discharge.  The application submitted in this case is dated 9 April 2006.

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 he enlisted in the Regular Army on 8 August 1980 and the highest rank he attained while serving on active duty was specialist/pay grade E-4.  

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having possession of marijuana.  His punishment included reduction to private/pay grade E-3, a forfeiture of $127.00 for one month, and 14 days of restriction.

6.  Records show that the applicant made a sworn statement on 21 February 1980.  In his statement the applicant indicated that he did not take a cassette deck and did not know who took the cassette deck.

7.  On 3 April 1980, the applicant made a sworn statement.  In this statement the applicant indicated that he was angry at the owner of the tape player for playing music too loud.  The applicant continued that he stole the tape player and sold it to another Soldier for $100.00.  The applicant stated that the other Soldier did not know that the tape player was stolen.

8.  The applicant's records show do not show that he accrued any lost time due to being absent without leave or held in confinement.

9.  On 9 May 1980, the applicant submitted a request for discharge for the good of the service under the provisions Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10.  In his request for discharge, the applicant indicated that he had not been coerced into requesting discharge and had been advised of the implications that were attached to the request.

10.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to submit a statement on his own behalf.

11.  On 29 May 1980, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 14 July 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year, 11 months, and 7 days of creditable active military.  

12.  The applicant provided an addendum to his application.  In this addendum the applicant contends that his punishment was too harsh, that he did not commit the crime, that he was an excellent Soldier prior to the incident, and that he was discriminated against because of his ethnic background.

13.  There is no evidence in the available records which indicate that the applicant sought assistance through his chain of command or any other appropriate military personnel for discriminatory actions during his separation processing.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for 
the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.

2.  Evidence shows the applicant received non-judicial punishment for possession of marijuana and was involved in the theft of a cassette tape player belonging to a fellow Soldier. 

3.  Based on this indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

4.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

5.  The applicant's current living conditions were noted when reviewing this case. However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment, employment benefits, or other Veteran's benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_BPI____  __RDG___  _EEM___  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.




__Bernard P. Ingold______
          CHAIRPERSON




INDEX

CASE ID
AR20060006092
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070111
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.