RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060015030 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Patrick H. McGann

Member

Ms. Karmin S. Jenkins

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 discharge be upgraded to an honorable or general discharge under honorable conditions.

2.  The applicant states, in effect, that he was in a fight because some men were making racial remarks.  The applicant also states, they (i.e., the applicant and presumably his friends) asked the men three times to stop, but they continued with their remarks as they followed them.  The applicant further states, in effect, that this was the sixth time that the men had done this.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 15 April 1982.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 April 1982, the date of his discharge from the Army.  The application submitted in this case is dated 13 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 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 military service records show that he enlisted in the U.S. Army Reserve for a period of 6 years on 22 December 1978.  He subsequently enlisted in the Regular Army and entered active duty for a period of 4 years on 
28 December 1978.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).  The highest grade he attained was specialist four/pay grade E-4.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant’s military service records contain a copy of a DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 17 October 1979.  This document shows that non-judicial punishment (NJP) was imposed against the applicant for, on or about 9 October 1979, being disorderly in his room.  His punishment consisted of reduction to the grade of private (E-2) (suspended for a period of 90 days), forfeiture of $116.00 pay, and 14 days extra duty.

5.  The applicant’s military service records contain a copy of a DA Form 2627, dated 7 January 1982.  This document shows that NJP was imposed against the applicant for, on or about 23 December 1981, being disorderly in a public place and failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to the grade of private first class (E-3), forfeiture of $64.00 pay, and 14 days extra duty.

6.  The applicant’s military service records contain a copy of a DA Form 2627, dated 19 January 1982.  This document shows that NJP was imposed against the applicant for, on or about 14 January 1982, stealing a three-piece suit of a value of $125.00, the property of another Soldier.  His punishment consisted of reduction to the grade of private (E-1), forfeiture of $275.00 pay per month for
2 months, 45 days extra duty, and 45 days restriction.

7.  The applicant's military service records are absent a copy of the documentation related to the applicant's administrative separation action.

8.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, Orders
104-110, dated 14 April 1982, which show, in pertinent part, that the applicant was assigned to the U.S. Army Separation Transfer Point, Fort Sill, Oklahoma, for the purpose of being discharged on 15 April 1982.

9.  The DD Form 214, issued to the applicant upon his separation, shows that he was discharged on 15 April 1982, in accordance with the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The applicant's character of service was "under other than honorable conditions."  At the time he had completed 3 years, 3 months, and 18 days net active service.

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

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of the Personnel Separations regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

12.  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.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to an honorable or general discharge under honorable conditions because other men initiated provocative actions that led to his misconduct.  However, the applicant provides insufficient evidence in support of his claim.

2.  The applicant's military service records fail to support his contention that the actions of others contributed to his misconduct during the period of service under review.  However, the evidence of record shows that the applicant had a recurring disciplinary history of military infractions prior to the submission of his request for discharge in lieu of trial by court-martial.  Therefore, based on available evidence, the applicant's overall service record was not sufficiently meritorious to mitigate the serious misconduct that led to his discharge.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, Chapter 1 (General Provisions), which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of undistinguished 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 should have discovered the alleged error or injustice now under consideration on 15 April 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
14 April 1985.  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

___KLW _  ___PHM_  ___KSJ__  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.




      _Kenneth L. Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015030
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/10
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19820415
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
Admin Disch - Conduct Triable by Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.