RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20070001176 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Sherri Ward

Chairperson

Mr. Richard Dunbar

Member

Mr. David Tucker

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 under other than honorable conditions be upgraded. 

2.  The applicant states, in effect, that he believes the record is unfair or unjust because he was incarcerated for four days by local authorities and then when he was released he was charged with being absent without leave (AWOL) from the Army.  He contends that he took the “other than honorable discharge” rather than put himself in any more trouble than he was already in with the local authorities in Texas.  He states that he has been a good citizen since his discharge, that he was young and foolish when his problems started, and that he needs help from the Department of Veterans Affairs (DVA) for his medical conditions.

3.  The applicant provides seven character reference letters and a newspaper article with photographs. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 March 1979.  The application submitted in this case is dated 12 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 was born on 1 July 1959.  On 22 October 1976, at age 17, he enlisted for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 68C (airframe repairman).

4.  On 4 October 1977, nonjudicial punishment was imposed against the applicant for insufficient funds.  His punishment consisted of a reduction to E-1 (suspended) and restriction.  

5.  On 13 October 1978, nonjudicial punishment was imposed against the applicant for being AWOL from 3 October 1978 to 5 October 1978.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay, and extra duty.  

6.  On 16 November 1978, the suspended portion of the punishment (reduction to E-2) imposed on 13 October 1978 was vacated.

7.  On 27 November 1978, nonjudicial punishment was imposed against the applicant for being AWOL from 13 November 1978 to 16 November 1978 and failure to repair.  His punishment consisted of a forfeiture of pay and extra duty. 

8.  On 20 December 1978, nonjudicial punishment was imposed against the applicant for being AWOL from 5 December 1978 to 14 December 1978.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

9.  Between 19 September 1978 and 8 December 1978, the applicant was counseled on five occasions for various infractions which included missing formation, not prepared for inspection, unacceptable appearance, and being AWOL. 

10.  On 6 February 1979, the applicant's unit commander initiated action to discharge him under the provisions of Army Regulation 635-200 for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He stated that the applicant had been AWOL from his unit on 
3 occasions, that the applicant was the best sheet metal man in the unit but he was also the most undependable and unpredictable Soldier in the unit, that the applicant had been counseled on many occasions, and that he had consistently disregarded established authority by demonstration or inability to conform to the standards of his unit. 

11.  After consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued and that he further understood that as the result of issuance of a discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

12.  On 1 March 1979, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a discharge under other than honorable conditions. 


13.  The applicant was discharged under other than honorable conditions on 
20 March 1979 under the provisions of Army Regulation 635-200 for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. He had served 2 years, 4 months and 15 days of creditable active service with 
14 days of lost time due to AWOL.

14.  The applicant provided seven character reference letters from his mother and six friends.  They attest that the applicant is a good person, a very good airplane mechanic, that he is respectable, hardworking, and caring.  

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

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14, paragraph 14-33b(1), provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally considered appropriate.  

17.  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.  

18.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed basic combat training and advanced individual training.    

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  Good post-service conduct alone is not normally a basis for upgrading a discharge. 

4.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

5.  The applicant’s record of service included numerous counseling statements,  four nonjudicial punishments, and 14 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant’s record of service is insufficiently meritorious to warrant an honorable discharge or general discharge.

6.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

7.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

8.  Records show the applicant should have discovered the alleged injustice now under consideration on 20 March 1979; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 March 1982.  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

SW____  __RD____  __DT____  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.




____Sherri Ward_______
          CHAIRPERSON




INDEX

CASE ID
AR20070001176
SUFFIX

RECON

DATE BOARDED
20070621
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790320
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.