RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060017287 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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 discharge be upgraded from under other than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he believes that he served with honor.  Since then he has been a family man and has always tried to help people.  He further states that a wrong decision was made to begin with and he still supports the military.

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 July 1985.  The application submitted in this case is dated 14 December 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 had prior service in the Army National Guard.  He enlisted in the Regular Army on 30 July 1978 and successfully completed advanced individual training.  He was awarded military occupational specialty 13E (Cannon Fire Direction Specialist).  He was honorably discharged on 29 October 1979 for the purpose of immediate reenlistment on 30 October 1979.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  25 March 1983 for lack of initiative and motivation and 21 October 1983 for being absent from his place of duty.

5.  On 15 February 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for operating a privately owned vehicle (POV) while drunk.

6.  On 23 May 1985, the applicant accepted NJP under Article 15, UCMJ for wrongfully using marijuana.

7.  On 14 March 1985, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations), for misconduct – pattern of misconduct.  The reason cited by the commander was that the applicant received a positive urinalysis test.  The applicant was advised of his rights and the commander recommended the applicant receive an under other than honorable conditions discharge.

8.  On 14 March 1985, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant requested counsel, requested to be heard by a board of officers, and declined to submit a statement on his own behalf.

9.  DA Form 1574 (Report of Proceedings by Investigating Officer (Board of Officers)), shows the board was held on 1 July 1985 and the board members recommended the applicant be discharged under the provisions of paragraph 
14-12c, Army Regulation 635-200 and be issued an Other Than Honorable Discharge Certificate.

10.  On 29 July 1985, the appropriate authority approved the recommendation and directed the applicant receive a discharge under other than honorable conditions under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  On 30 July 1985, he was separated from the service after completing 7 years, 6 months, and 28 days of creditable active service in the Regular Army.

11.  Army Regulation 635-200 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 a serious offense, convictions by civil authorities, desertion or absence 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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate.  

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's records show that he received two Article 15s, had several negative counselings, and wrongfully used marijuana.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 July 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 July 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

__JEA___  __JLP__  __JBM___  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.




___James E. Anderholm__
          CHAIRPERSON




INDEX

CASE ID
AR20060017287
SUFFIX

RECON

DATE BOARDED
26 JUNE 2007
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0133.0000
2.
144.0136.0000
3.

4.

5.

6.