RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 June 2007
	DOCKET NUMBER:  AR20070001980 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. William F. Crain

Member

Mr. Dean A. Camarella

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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states that his discharge was the result of a chain of events set in motion by his commanding officer and the first sergeant.

3.  The applicant provides a detailed statement of his military career, dated 1 February 2007, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 September 1979, the date of his separation from active duty.  The application submitted in this case is dated 1 February 2007.

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 records show he enlisted in the Regular Army on 21 June 1977.  After completion of basic and advanced individual training, he was awarded military occupational specialty 63B (Power Generator Equipment Repairman).

4.  The applicant's records show he received the Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar.  

5.  The applicant's records do not show any significant acts of valor during his military service.

6.  The records reveal a disciplinary history which includes his acceptance of non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for three periods of being absent without leave (AWOL) 11 June 1979 through 1 July 1979, 6 July 1979 through 8 July 1979, and 16 July 1979 through 5 August 1979.  The applicant's service records also contain numerous counseling statements for various infractions including missing formations, failure to report, shirking, and barracks being unsatisfactory.

7.  On 6 July 1979, the applicant's command authorized the issuance of a bar to reenlistment.

8.  On 8 August 1979, the applicant was notified of pending separation under the provisions of Army Regulation 635-200 (Personnel Separations) paragraph 
14-33b(1), for frequent incidents of a discreditable nature with civil or military authorities.  The applicant chose not to submit a statement in his own behalf.

9.  On 9 August 1979, the company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200 paragraph
14-33b(1), for misconduct.  The intermediate commander concurred with the recommendation.

10.  On 7 September 1979, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14-33b(1), by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, and directed that the applicant receive an under other than honorable conditions discharge.  

11.  The applicant's DD Form 214 (Report of Separation from Active Duty), dated 28 September 1979, shows he was issued an under other than honorable conditions discharge and had served a total of 2 years, 1 month, and 23 days of total active service.

12.  The applicant self-authored statement in summary shows that he was injured, in early 1978, while playing in a company football game.  The applicant continues that he was unconscious for six weeks and experienced loss of memory.  The applicant continues that after returning to consciousness he did not remember being injured.  The applicant continues that he was then placed under a profile based on his mobility limitations and the daily use of crutches and that even though he was using crutches, he was seen playing basketball by his first sergeant and his commanding officer.  The applicant alleges that because he was playing basketball they determined he no longer needed a profile and he was ordered back to duty.  The applicant concludes that a medical doctor should have decided when his profile would end.  The applicant continues that the chain of events which caused his discharge began after his sergeant and his commanding officer intervened.  The applicant contends that he has had a good life considering his experience with the government and alleges that he has suffered two disabling injuries one being when he was injured while in the military in 1978.  The applicant continues that he would be eligible for Veterans Benefits if his discharge was upgraded.

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

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 14-33b(1) states, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for misconduct.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  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.

17.  There is no evidence in the available records nor does the applicant provide any evidence that he sought assistance from his chain of command, or any other individual for assistance for a medical condition which render him unfit for duty or separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was unfairly treated by his commanding officer and the sergeant in charge.  


2.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows he sought assistance from his chain of command.  There is also no evidence in the available records which shows that his indiscipline was as a result of his issues with the commanding officer and the sergeant in charge.

3.  The applicant's record of service included three nonjudical punishments for being AWOL, failure to go to his appointed place of duty, and numerous periods of counseling.

4.  The record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The severity of the applicant's misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

6.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veterans Benefits.

7.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 September 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 September 1982.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JTM____  _DAC___  _WFC___  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
AR20070001980
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.