RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070007007 


	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:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 discharge. 

2.  The applicant states, in effect, that he had medical problems during his military service.

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army on 26 July 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71G (Medical Records Specialist). Records further show that he served in Germany during the period 10 January 1977 through 18 May 1979 and the highest rank he attained while serving on active duty was private first class/pay grade E-3.

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

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 16 December 1976, for unlawfully striking another Soldier in the face with a chair and threatening to kill him, on 14 December 1976.  His punishment consisted of forfeiture of $87 pay for one month.

	b.  On 23 November 1977, for disobeying a lawful order to identify himself to the gate guard, being drunk and disorderly, and resisting apprehension, on 22 October 1977.  His punishment consisted of 15 hours of extra duty. 

	c.  On 24 March 1978, for disobeying regulation by not having a haircut on 10 March 1978 and disobeying regulation by wearing tennis shoes with the fatigue uniform at the dining facility on 14 March 1978.  His punishment consisted of forfeiture of $75 pay and 12 hours of extra duty.

	d.  On 6 April 1978, for failing to go to his appointed duty and being disrespectful to a noncommissioned officer on 3 January 1978; failing to go to his appointed place of duty on 9 January 1978; and failing to go to his appointed place of duty on 19 January 1978.  His punishment consisted of reduction to the grade of private/pay grade E-2, forfeiture of $150 pay and 15 days of extra duty.

	e.  On 4 May 1978, for wrongfully possessing one roach clip bearing residue of marijuana and one portion of hand-rolled cigarette containing residue of marijuana on 6 April 1978 and for wrongfully possessing marijuana on 4 March 1978.  His punishment consisted of forfeiture of reduction to the grade of private/pay grade E-1, forfeiture of $45 pay, and 14 days of extra duty (4 days suspended for 6 months).

	f.  On 8 February 1979, for stealing a $150 jacket from another Soldier on 4 January 1979.  His punishment consisted of 30 days of restriction and 14 days of extra duty.

5.  On 18 January 1979, the applicant pled "not guilty" at a General Court-Martial to the charge and specifications of wrongfully selling heroin, possessing marijuana in the hashish form; possessing residue of marijuana, and possessing heroin, on 5 September 1978.  The Court dismissed the charges and specifications due to the applicant's subsequent request for administrative discharge under chapter 10 of Army Regulation 635-200 (Personnel Separation).

6.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel on 16 March 1979, he requested discharge for the good of the service in lieu of trial by court-martial.



9.  On 6 April 1979, the separation authority approved the applicant's request for discharge and directed that he receive an Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 23 April 1979 under conditions other than honorable and had completed 2 years, 9 months, and 3 days of creditable active military service. 

10.  The applicant's records do not reflect any instances of unusual medical problems or any indications that the applicant underwent any type of surgery.  The records further do not show that the applicant addressed any medical issues with his chain of command or with any supporting health clinics at the installation to which he was assigned.  Additionally, the applicant's report of medical examination upon separation does not show any medical conditions that would have disqualified him from separation.

11.  On 3 November 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7, 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.

14.  Army Regulation 635-200, paragraph 3-7, 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 contends that his Under Other Than Honorable Conditions Discharge should be upgraded.

2.  There is no evidence in the applicant's record that he was undergoing any medical condition during his military service or that he underwent surgery that could have contributed to his repeated patterns of misconduct and indiscipline.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __swf___  __rsv___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.


							Linda D. Simmons
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070007007
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19790423
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.