RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060010196


	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 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 discharge be upgraded.

2.  The applicant states he stayed in the service and should have received an honorable discharge.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 August 1980.  The application submitted in this case is dated 12 July 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 enlisted in the Army National Guard (ARNG) on 7 December 1977.  He completed his active duty for training from 5 February 1978 through 18 May 1978 and returned to his ARNG assignment.

4.  The applicant was a disciplinary problem in the ARNG.  After amassing five unsatisfactory participations and failing to respond to any attempts to contact him by his unit, he was involuntarily ordered to active duty for 20 months.

5.  The applicant reported to Fort Knox, Kentucky on 25 May 1979 and was transferred to Fort Carson for duty with Company C, 1st Battalion, 8th Infantry, 4th Infantry Division.  He arrived at Fort Carson on/about 8 June 1979.

6.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions for the following offenses:  on 9 October 1979 for failing to go to his place of duty on two occasions and possessing drug paraphernalia; on 8 February 1980 for absence without leave (9-15 January 1980); on 21 April 1980 for 5 specifications of failure to go to his place of duty; and on 29 April 1980 for shoplifting a pair of socks from the Post Exchange, breaking restriction, and failing to go to his place of duty.

7.  The applicant was transferred within the 1st Battalion, 8th Infantry, but his behavior did not improve.  On/about 6 May 1980, his chain of command recommended he be discharged for misconduct under the provisions of Army Regulation (AR) 635-200, chapter 14.  The applicant acknowledged notification and consulted with legal counsel who explained the basis for the separation action, its effects, and the rights available to him.  The applicant waived his rights and did not submit a statement on his own behalf.  The separation action was approved on/about 25 June 1980.

8.  The applicant was discharged under other than honorable conditions on 13 August 1980.  His reason for discharge was "Misconduct – frequent incidents of a discreditable nature with civil or military authorities" under chapter 14, AR 635-200.  He had 1 year, 5 months, and 27 days of total active service and 6 days of lost time due to absence without leave.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 23 November 1981, denied his request.

10.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  

11.  Chapter 14 of the separation regulation 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, convictions by civil authorities, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the ARNG where he proved himself to be a disciplinary problem and an unsatisfactory participant.  On 25 May 1979, he was involuntarily ordered to active duty.

2.  On active duty, the applicant quickly amassed numerous negative counseling statements and also received multiple NJPs.  The record also shows he was in trouble with civil authorities, but the reason is no longer available.

3.  The record shows the applicant was processed for separation under the provisions of AR 635-200, chapter 14, by reason of misconduct.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 23 November 1981.  As a result, the time for the applicant to file a request for correction of any error injustice to this Board expired on 22 November 1984.  The applicant did not file within the ABCMR's 3-year statute of limitations and has not provided 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

__tsk___  __lcb___  __lmd___  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.



							Ted S. Kanamine
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060010196
SUFFIX

RECON

DATE BOARDED
20070227
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800813
DISCHARGE AUTHORITY
AR 635-200 C14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.