RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2007
      DOCKET NUMBER:  AR20060014083


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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.

2.  The applicant states, in effect, that he is applying for medical
benefits, treatment, and financial assistance.

3.  In support of his request, the applicant provided a copy of his DD Form
214, Certificate of Release or Discharge from Active Duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice, which occurred
on 11 February 1983.  The application submitted in this case is dated 25
September 2006, and was received for processing on 4 October 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 limitation 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 US Army Reserve on 28 September 1976.
On 1 October 1976, the applicant enlisted in the Regular Army for 3 years.
He successfully completed basic combat training at Fort Knox, Kentucky.  He
completed advanced individual training at Fort Benning, Georgia.  On
completion of this training, he was awarded the military occupational
specialty 11B, Light Weapons Infantryman.

4.  The applicant's record shows he was promoted to the rank and pay grade,
Specialist Four, E-4, on 1 March 1978.  The record shows this is the
highest rank and pay grade he held on active duty.  The record contains no
documented acts of valor, achievement, or service warranting special
recognition.

5.  On 22 January 1979, the applicant received nonjudicial punishment under
the provisions of Article 15, of the Uniform Code of Military Justice
(UCMJ), for
willfully disobeying a lawfully given order by a noncommissioned officer on
20 January 1979.  The imposed punishment was a reduction to pay grade E-3
(suspended for 30 days) and a forfeiture of $50.00, of which $25.00 was
suspended for 30 days.

6.  On 24 April 1979, the applicant was discharged for the purpose of
immediately reenlisting.  On 25 April 1979, the applicant reenlisted for 6
years.

7.  On 24 July 1979, the applicant received an Article 15 under the
provisions of the UCMJ for striking another Soldier in the face with his
open hand on 12 July 1979 and for absenting himself without authority from
his place of duty on 16 July 1979.  The imposed punishment was a reduction
from pay grade E-4 to E-3, a forfeiture of $110.00 (suspended for 60 days),
and extra duties for 14 days.

8.  On 1 October 1979, the applicant's duty status was changed from,
"present for duty" to, "confined by civilian authorities."  The applicant
was returned to military control on 4 October 1979.

9.  On 16 November 1979, the applicant's duty status was changed from
"present for duty" to "confined by civilian authorities" for his failure to
appear in court.  The applicant was returned to military control on 24
November 1979.

10.  On 7 December 1979, the applicant received an Article 15 under the
provisions of the UCMJ for failing to go at the appointed time to his place
of duty on 3 November 1979 and for treating his superior noncommissioned
officer with contempt on 3 November 1979.  The imposed punishment was a
reduction in pay grade from E-3 to E-2, a forfeiture of $90.00 (suspended
for 60 days), and extra duties for 14 days.

11.  On 3 January 1980, the applicant's duty status was changed from,
"present for duty" to, "absent without leave."  The applicant surrendered
himself to the unit first sergeant on 9 January 1980.

12.  On 13 February 1980, the applicant's duty status was changed from,
"present for duty" to, "confined by military authorities."  The applicant
was released from military confinement and returned to his unit on 25 April
1980.

13.  On 24 March 1980, the applicant was convicted by a special court-
martial of multiple charges and specifications.  He was sentenced to be
reduced to the pay grade E-1 and to be confined at hard labor for 4 months.
 The sentence was approved and was ordered executed on 30 July 1980.

14.  On 3 October 1980, the unexecuted portion of the approved sentence to
confinement at hard labor for 4 months, not subsequently modified, was
deferred on 25 April 1980.

15.  The applicant was promoted to the rank and pay grade Specialist Four,
E-4 on 1 November 1981.

16.  On 29 July 1982, the applicant's duty status was changed from,
"present for duty" to, "absent without leave."  The applicant's status
was changed from "absent without leave" to "present for duty" on 24
August 1982.

17.  On 2 September 1982, the applicant received an Article 15 under the
provisions of the UCMJ for absenting himself without authority from his
unit on 6 August 1982 and for remaining absent without leave until 24
August 1982.  The imposed punishment was a reduction in pay grade to E-3
and extra duty and restriction
for 14 days.

18.  On 4 October 1982, the applicant's duty status was changed from,
"present for duty" to, "absent without leave."  The applicant's status was
changed from "absent without leave" to "present for duty" on 11 October
1982.

19.  On 21 October 1982, the applicant received an Article 15 under the
provisions of the UCMJ for absenting himself without authority from his
unit on 4 October 1982 and for remaining absent without leave until 11
October 1982.  The imposed punishment was a reduction in pay grade to E-
1, extra duty and restriction for 30 days, and a forfeiture of $250.00
per month for 2 months (with $100.00 per month for 2 months suspended for
90 days).

20.  The applicant received an Article 15 on 3 December 1982.  Although
he was found guilty, the commander did not impose any punishment.
Instead, he vacated the suspension of the punishment of $250.00 per month
for 2 months (with $100.00 per month for 2 months suspended for 90 days)
that had been imposed on him in the Article 15 that was administered on
21 October 1982.

21.  On 3 December 1982, the applicant received an Article 15 under the
provisions of the UCMJ for being drunk and disorderly in the dayroom, on
24 November 1982, and for two counts of willfully damaging military
property of the United States with pool balls.  The imposed punishment
was extra duty for 45 days and a forfeiture of $275.00 per month for 2
months.
22.  A mental status evaluation was conducted on 8 December 1982.  The
applicant's behavior was found to be normal.  He was found to be fully
alert and fully oriented.  His mood or effect was unremarkable, his
thinking process was clear, and his thought content was normal.  The
evaluating psychiatrist, an Army medical corps officer, found him to be
mentally responsible, considered to have the mental capacity to understand
and participate in separation proceedings, and to meet the retention
standards of AR 40-501, chapter 3.  The applicant was psychiatrically
cleared for whatever administrative action deemed appropriate by command.

23.  The evidence of record shows that on 21 December 1982, his unit
commander notified the applicant that he was recommending that he be
discharged from the Army under the provision of Army Regulation (AR) 635-
200, chapter 14, for misconduct.

24.  On the same date, the applicant's unit commander recommended the
applicant be discharged from the Army under the provisions of AR 635-200,
chapter 14, for misconduct.  The commander added that the applicant had
received numerous opportunities by the Army to improve his performance.
The applicant had been to the retraining brigade, as well as receiving
numerous counseling (written and oral) as to the consequences of his
misconduct.  His presence, the commander stated, was detrimental to the
Army.  Discharge was specifically recommended for misconduct because of
other acts or pattern of misconduct – frequent incidents of discreditable
nature with civil or military authorities.  A waiver of further counseling
and rehabilitation was recommended because, the commander opined it would
create disciplinary problems or a hazard to the military mission or to the
service member himself or it would be inappropriate because the service
member was obviously resisting attempts at rehabilitation and these efforts
would not produce a quality Soldier.

25.  On 22 December 1982, the applicant acknowledged the letter of
notification and waived consideration of his case by a board of officers,
waived personal appearance before a board of officers, and elected not to
submit a statement in his own behalf.  The applicant requested
representation by consulting counsel.

26.  In his acknowledgement, the applicant stated he understood he could
expect to encounter substantial prejudice in civilian life if a general
discharge under honorable conditions was issued to him.  He further
understood that, as a result of issuance of a discharge under other than
honorable conditions, he might be ineligible for many or all benefits as a
veteran under both Federal and State laws and he could expect to encounter
substantial prejudice in civilian life.

27.  The applicant's chain of command unanimously recommended approval of
his discharge for misconduct and that he not be transferred to the
Individual Ready Reserve.

28.  On 4 January 1983, the applicant received an Article 15 under the
provisions of the UCMJ for failing to go at the time prescribed to his
appointed place of duty on 30 and 31 December 1982 and on 1 and 2 January
1983.  The imposed punishment was restriction for 30 days and a
forfeiture of $275.00.

29.  On 5 January 1983, the applicant was barred from reenlistment.  In the
recommendation, the commander stated the applicant had been an extreme
discipline problem as the record reflected and that his continued service
would be of no benefit to the individual or the Army.

30.  On 9 February 1983, the appropriate approval authority, a major
general, approved the applicant's discharge.  He directed the applicant
receive a discharge certificate, under other than honorable conditions.

31.  The applicant was discharged under the provisions of AR 635-200,
chapter 14, with an under other than honorable conditions discharge, in
the rank and pay grade of Private, E-1, on 11 February 1983.  On the date
of his discharge, the applicant had completed a total of 6 years, 2
months, and 23 days of active military service with the periods of from 1
October 1979 through 3 October 1979, 16 November 1979 through 23 November
1979, 3 January 1980 through 7 January 1980, 29 July 1982 through 23
August 1982 and 4 October 1982 through 10 October 1982 identified as days
of time lost.

32.  There is no evidence the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge

33.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 14, then in effect, established policy and
prescribed procedures for separating personnel for misconduct because of
minor disciplinary infractions, a pattern of misconduct, commission of a
serious offense, conviction by civil authorities, desertion, and absence
without leave.

34.  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, 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.

35.  AR 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 separation specifically allows such characterization.

36.  The evidence shows that in addition to the court-martial and non-
judicial punishments he received under Article 15 of the UCMJ, the
applicant was counseled about his conduct and performance of duty on:  23
July 1981, 19 September 1981, 29 January 1982, 8 April 1982, 25 May 1982,
and 20 October 1982.  He also received a letter of reprimand on 3
February 1982.

37.  In his application to the Board, the applicant stated, in effect, he
was applying for medical benefits, treatment and financial assistance.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence of record shows that the applicant had an extensive
history of misconduct.  All efforts to rehabilitate the applicant expended
by the applicant's chain of command did not produce and were not likely to
produce a quality Soldier.  The evidence shows that even after his chain of
command took action to discharge him from the Army, he continued to violate
the UCMJ and subject himself to non-judicial punishment and a bar to his
reenlistment.

3.  The Board acknowledges the applicant's desire to have his under other
than honorable discharge upgraded to enable him to make application to
those Federal, State, or other Governmental agencies which dispense
benefits to veterans who served honorably; however, the Board does not
grant relief solely for the purposes qualifying an applicant for benefits
administered by these agencies.

4.  Records show the applicant should have discovered the alleged error
or injustice now under consideration on 11 February 1983; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 10 February 1986. 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MJF___  __RJO__  __J______  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                 |AR20060014083                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070719                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19830211                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 14                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0133                                |
|3.                      |144.6000                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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