RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060011751 


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states that he received three non-judicial punishments (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) prior to his discharge.  The applicant further states that he was discharged based on his problems with the sergeant in charge.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 17 March 1980, the date of his separation from active duty.  The application submitted in this case is dated 27 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's records show he enlisted in the Regular Army on 8 July 1977. After completion of basic and advanced individual training, he was awarded military occupational specialty 11B (Infantryman).

4.  The applicant's records show he received the Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar and the Expert Marksmanship Qualification Badge with Hand Grenade Bar.  

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



6.  The records reveal a disciplinary history which includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on 3 March 1978 and on 14 December 1979, for failure to go to his appointed place of duty; on 5 July 1979, for being disrespectful in language and deportment towards a superior noncommissioned officer; and on 23 August 1979 and on 25 January 1980, for willfully disobey a lawful order from a superior noncommissioned officer.  The applicant's service records also contain numerous counseling statements for various infractions, including missing formations, all day sick calls, not bringing his weapon to formation, destruction of his weapon, creating distraction during drills, and failing to obey orders.

7.  On 30 August 1979, the applicant was notified of pending separation under the provisions of Army Regulation 635-200 paragraph 14-38d, for misconduct.  The applicant requested a hearing before a board of officers through counsel and did not submit a written statement in his own behalf.

8.  On 27 November 1979, the company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separation) paragraph 14-38d, for misconduct.  

9.  On 12 December 1979, the intermediate commander concurred with the recommendation.

10.  On 14 February 1980, the board of officers met at Headquarters, Berlin Brigade, Germany.  The applicant's overall service record was considered by the board to determine if he should be eliminated under the provisions of Army Regulation 635-200 chapter 14 for misconduct.  The board of officers recommended the applicant be separated from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct and that he be issued an under other than honorable conditions discharge.  

11.  On 10 March 1980, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14-33b(1), by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, and directed that the applicant receive an under other than honorable conditions discharge.  

12.  The applicant's DD Form 214, dated 17 March 1980, shows he was issued an under other than honorable conditions discharge and had served a total of 2 years, 8 months, and 10 days of total active service.

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

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 14-33b(1) states, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for misconduct.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.

17.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 March 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 March 1983.  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 timely file in this case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was unfairly treated by the sergeant in charge.  



2.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows he sought assistance from his chain of command.  There is also no evidence in the available records which shows that his indiscipline was as a result of his issues with the sergeant in charge.

3.  The applicant's record of service included four nonjudical punishments for failure to go to his appointed place of duty, for being disrespectful in language and deportment towards a superior noncommissioned officer, for willfully disobeying a lawful order from a superior noncommissioned officer; and numerous periods of counseling were the bases of his separation action.

4.  The record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

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

6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 March 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 March 1983.  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 FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JCR__ _  _JRH___  __TMR___  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.





						       __Thomas M. Ray__
		        CHAIRPERSON

2




INDEX

CASE ID
AR2060011751
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1980/03/12
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Chapter 14-33B(1)
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.