RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070004683 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

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 an upgrade of his Under Honorable Conditions Discharge to Honorable Discharge. 

2.  The applicant states, in effect, that his superiors disapproved of his tone of voice and mannerism. 

3.  The applicant did not provide any documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 22 October 1980, the date of his discharge.  The application submitted in this case is dated 14 March 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 that he enlisted in the Regular Army on 8 August 1978.  Records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist).  The highest rank the applicant attained during his military service was private first class/pay grade E-3.

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

5.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:

	a.  On 12 December 1978, for unlawfully entering the company bay area and failing to go to his appointed place of duty on 5 December 1978.  His punishment consisted of forfeiture of $30 per month for 1 month and 5 days extra duty.
	b.  On 13 August 1979, for being found sleeping upon his post on 3 August 1979.  His punishment consisted of forfeiture of $50 per month for 1 month (suspended for 30 days, vacated on 31 August 1979), reduction to the grade of private/pay grade E-2 (suspended for 30 days, vacated on 31 August 1979), 14 days restriction, and 14 days extra duty.  

	c.  On 26 February 1980, for failing to go to his appointed place of duty and disobeying a lawful order on 12 February 1980.  His punishment consisted of forfeiture of $100 per month for 1 month and placement in the Correctional Custody Facility for 7 days.

	d.  On 30 July 1980, for being absent without leave during the period on or about 25 July 1980 through on or about 26 July 1980.  His punishment consisted of reduction to the grade of private/pay grade E-2 (suspended for 30 days and vacated on 4 August 1980), forfeiture of $120 pay, 14 days restriction to the limits of the company area, and 14 days extra duty.

6.  On 5 September 1980, the applicant’s immediate commander advised the applicant that he intended to recommend his separation from the Army under the provisions of paragraph 5-31 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of inability to adjust to military life.  The immediate commander recommended a General Discharge Certificate.

7.  On 5 September 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  The applicant declined making a statement and waived his separation physical.

8.  On 5 September 1980, the intermediate commander recommended the applicant's separation under the provisions of chapter 5 of Army Regulation
635-200.  The intermediate commander recommended a general discharge.

9.  On 18 September 1980, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 12 October 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 2 years, 2 months, and 15 days of creditable active military service.


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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government.  Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army's Expeditious Discharge Program.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because his superiors disapproved of his tone of voice and mannerism. 

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were as a result of either his tone of voice or mannerism.

3.  The applicant's record of service shows that he displayed an inability to adjust to the regimentation of military life as reflected by his continuous disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 October 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 October 1983.  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

__mjf___  __lwr___  __dws___  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.



							Michael J. Flynn
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070004683
SUFFIX

RECON

DATE BOARDED
20070814
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19801022
DISCHARGE AUTHORITY
AR 635-200, Chap 5
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.