RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070002142 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. John P. Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

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

2.  The applicant states, in effect, that he would like for his discharge to be upgraded, because he had a stroke on 19 May 2006, and he would like to receive rehabilitation treatment from the Department of Veterans Affairs (DVA) medical services.  

3.  He states, in effect, that his discharge was unjust because it was based on one isolated incident involving 0.5 grams of marijuana residue during his second enlistment.  He states that in his six years of service he had no other adverse action.  He used his 60 days of remaining leave to get out of the Army.  He would like to have his discharge upgraded because his first enlistment was honorable.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 September 1982.  The application submitted in this case is dated  
30 January 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 military records show that he entered active duty on 6 January 1977 for a period of three years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 31B1O (Field Communication Electronics Equipment Mechanic).

4.  Between 23 October 1978 and 24 September 1979 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for failing to go to his 
appointed place of duty (three specifications), for wrongfully having in his possession .5 ounces more or less of marijuana, and for disobeying a lawful order from a commissioned officer.

5.  On 25 November 1979, the applicant reenlisted for a period of three years.  

6.  Between 1 December 1979 and 8 June 1982, the applicant accepted NJP twice for failing to go to his appointed place of duty, disobeying a lawful order, for wrongfully appropriating a controlled telephone system the property of the U.S. Government by making an unauthorized call to the United States of an undetermined value, for wrongfully communicating a threat to injure a fellow Soldier, and for wrongfully having in his possession .01 grams more or less of marijuana.

7.  The applicant's discharge packet was not included in his records.  However, the DD Form 214 he was issued shows he was discharged under other than honorable conditions for conduct triable by court-martial on 2 September 1982.  He had completed a total of 5 years, 7 months, and 27 days of active service.

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

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

10.  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.

11.  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 requests his under other than honorable condition discharge be upgraded to an honorable discharge because he had a stroke on 19 May 2006, and he would like to receive rehabilitation treatment from the DVA medical services.

2.  The applicant's statement that his discharge was unjust, because it was based on one isolated incident involving 0.5 grams of marijuana residue during his second enlistment and that he had no other adverse action is not supported by the evidence of record.  The applicant had accepted NJP three times during his first enlistment, and twice during his second enlistment.

3.  While the applicant’s discharge packet is not included in his records, the Board must review a case with a presumption of regularity, that what the Army did was correct.  It is up to the applicant to prove otherwise.  The applicant has not submitted any documentation to overcome the presumption of regularity.

4.  While the Board emphasizes with the applicant’s medical problems, the Board does not change properly constituted records to establish eligibility for entitlements from another agency.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, he is not entitled to either an honorable or a general discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 September 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
1 September 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

___jpi___  ___jrh___  ___rml___  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 P. Infante_________
          CHAIRPERSON




INDEX

CASE ID
AR20070002142
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070724
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.