RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060012561 


	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:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

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 to an honorable discharge.

2.  The applicant states, in effect, that he did three years of service from June 1980 to 27 January 1983 and received an honorable discharge.  He then reenlisted for three years.  He states that during his second tour of duty he committed a foolish immature act and, because of this act, he was discharged.  He states that since his discharge from the Army, he has been a model citizen working in his community, a husband, and a dad.  He further states that there was not any injustice in his discharge; it was his responsibility to do the right thing.

3.  The applicant provides;

     a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty);

     b.  a copy of an Honorable Discharge Certificate and United States Regional Personnel Center, Mainz Orders 27-50, both dated 27 January 1983;

     c.  a copy of a Under Other Than Honorable Conditions Discharge Certificate, dated 7 February 1985; and 

     d.  a copy of a letter of recommendation from his spouse and his employer.  Each letter of recommendation provides a synopsis of the applicant's achievements and conduct after his discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 February 1985, the date of his discharge from active duty.  The application submitted in this case was received on 21 August 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 that he entered active duty on 18 June 1980.
He completed basic combat training and advanced individual training, and was awarded the military occupational specialty 16P1O (Air Defense Artillery Short Range Missile Crewman).  The highest rank he attained while serving on active duty was specialist four/pay grade E-4.

4.  He served with Headquarters and Headquarters Battery, 1st Battalion, 59th Air Defense Artillery, 8th Infantry Division during the period 23 December 1980 to 23 January 1984.

5.  On 2 August 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for operating an M151A2 (Tow Missile Launcher) Jeep while drunk.  His punishment consisted of a reduction to the rank of private first class/pay grade E-3, suspended to be automatically remitted if not vacated before 29 January 1984, extra duty for 14 days, 14 days restriction, and a forfeiture of $171.00 per month for one month.

6.  On 12 December 1984, the applicant accepted NJP under the provisions of Article 15, UCMJ for wrongful use of some amount of marijuana, at a time sufficiently proximate to resumption of his duty so as to create a probability that such action would constitute a direct threat to the good order and discipline of the United States Army.  His punishment consisted of 30 days extra duty, 14 days restriction, reduction to the rank of private/pay grade E-1, and forfeiture of $298.00 for two months.

7.  The applicant's discharge packet was not included in his records.  However, he was discharged under other than honorable conditions for a pattern of misconduct on 7 February 1985.  He had completed a total of 4 years, 7 months, and 20 days of active service.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for an 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.
10.  Army Regulation 635-200 (Personnel Separations), 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.

11.  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 requests that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant's acceptance of two NJPs and his pattern of misconduct certainly warranted an under other than honorable conditions discharge.

3.  The letters of recommendation concerning his post-service achievements and conduct are noted.  However, his post-service achievements are not normally sufficient for upgrading a properly issued discharge.  Therefore, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 February 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
6 February 1988.  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

___lwr___  ___mkp__  ___reb__  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.




_________Margaret K. Patterson____
          CHAIRPERSON




INDEX

CASE ID
AR20060012561
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070315
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.