RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20060016668 


	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

Mrs. Victoria Donaldson

Analyst

The following members, a quorum, were present:


Ms. LaVerne M. Douglas

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea N. Nuppenau

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:

The applicant requests, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  

2.  The applicant states that the discharge was unjust and that he has not been a menace to society.  The applicant further states that he would like to take advantage of Veteran's benefits.

3.  The applicant did not provide any additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 30 December 1977, the date of his discharge.  The application submitted in this case is dated 17 November 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 enlisted in the Regular Army and entered active duty on 23 June 1976.  He successfully completed basic combat training and was awarded military occupational specialty (MOS) 71N (Traffic Management Coordinator).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that he was advanced to private/E-2 (PV2) on 1 December 1976, and that this was the highest rank he attained while serving on active duty.  Item 18 also shows that he was reduced to private/E-1 (PV1) for cause on 9 December 1976.  



5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following six separate occasions for the offenses indicated:  9 December 1976, for failure to repair; 8 February 1977, for disobeying a lawful order; 26 April 1977, for failure to repair; 16 August 1977, for failure to repair; 8 September 1977, for failure to repair and possession of marijuana; and 25 October 1977, for disobeying a lawful order.

6.  The applicant's records further show that he received counseling on 4 occasions for the following:  17 January 1977, for a dishonored check; 4 August 1977, for missing formation; 9 August 1977, for failure to repair; and 12 August 1977, for a uniform violation.

7.  On 30 March 1977, the unit commander notified the applicant of his intent to initiate action to separate the applicant under the provisions of Chapter 13, Army Regulation 635-200 (Enlisted Personnel-Personnel Separations), by reason of Misconduct, citing the applicant's frequent incidents of a discreditable nature with military authority as the basis for the action.

8.  On 6 December 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel, the applicant waived his right to have his case considered by a board of officers, his right to personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.    

9.  On 21 December 1977, the separation authority directed the applicant's discharge under the provisions of Chapter 13, Army Regulation 635-200, for misconduct, and that he receive an UOTHC discharge.  On 30 December 1977, the applicant was discharged accordingly.  The separation document (DD Form 214) the applicant was issued at the time shows he completed a total of 1 year,
6 months, and 8 days of creditable active military service.

10.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for misconduct for a pattern of misconduct.  Although the separation authority could grant an honorable or general discharge if warranted by the members record of service, an UOTHC discharge was normally considered appropriate for member separating under these provisions.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust was carefully considered.  However, his record shows he received counseling on 4 occasions and received seven NJP's for acts of misconduct.

2.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is noted that the applicant, after consulting with legal counsel, elected to waive his right to have his case considered by a board of officers and he chose not submit a statement in his own behalf.  

3.  Further, given the applicant’s extensive disciplinary history, it is concluded that his discharge accurately reflects his overall record of service.  Therefore, there was no basis to support an honorable or general discharge at the time, or that supports an upgrade of his discharge at this time.  

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 30 December 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 December 1980.  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

_LMD__ _  _EEM___  _RNN__    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.




_ _LaVerne M. Douglas_
               CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.