RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2007
      DOCKET NUMBER:  AR20070007097


      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. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 discharge be upgraded. 

2.  The applicant states, in effect, that he was discriminated against by
his platoon sergeant and by his unit commander.

3.  The applicant did not submit any additional documentation 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 enlisted in the Regular Army on 20 October 1981, for a
period of 3 years.  He completed the required training and was awarded
military occupational specialty 13B (Cannon Crewman).  The highest rank he
attained while serving on active duty was Specialist Four (SP4), pay grade
E-4.

3.  During the applicant’s tenure on active duty, he accepted nonjudicial
(NJP) on eight separate occasions.  His offenses included using
disrespectful language towards a senior noncommissioned officer; violating
a lawful written general order by possessing a switch blade knife; without
authority, failing to go at the time prescribed to his appointed place of
duty on several occasions; and dereliction in the performance of his
duties.  His punishments consisted of reduction in grade, confinement at
the Correctional Custody Facility, forfeitures of pay, and restrictions and
extra duties.

4.  The applicant’s complete discharge packet is not contained in his
personnel records.  However, on 11 June 1985, the commander forwarded the
recommendation for separation to the approving authority.  The approving


authority appointed an administrative board pursuant to Army Regulation
635-200, paragraph 14-12b to determine whether the applicant should be
discharged for patterns of misconduct.

5.  On 28 August 1985, the administrative board convened.  The applicant
was found unacceptable for further retention in the military service
because of a pattern of misconduct.  The administrative board recommended
that the applicant be separated under the provisions of AR 635-200,
paragraph 14-12b and issued a Discharge Certificate Under Other Than
Honorable Conditions.  On 16 October 1985, the applicant was discharged
accordingly.  The DD Form 214 (Certificate of Release or Discharge From
Active Duty) issued to him at the time, confirms that the applicant
completed a total of 3 years, 11 months, and 27 days of creditable active
military service.

6.  Army Regulation 635-200 (Personnel Separations), sets forth the basic
authority for the separation of enlisted personnel.  Paragraph 14 of this
regulation establishes policy and prescribes procedures for separating
members for misconduct.  Specific categories include minor disciplinary
infractions, a pattern of misconduct, commission of a serious offense,
conviction by civil authorities, desertion, or absences without leave.
Action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally considered appropriate.

7.  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.

8.  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.

9.  Army Regulation 635-200 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’s contentions were carefully considered and found to be
insufficient in merit.

2.  The evidence of record shows that the applicant accepted eight NJP
punishments and was recommended for discharge by an administrative
separation board.

3.  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.  Therefore, he is not entitled to an honorable or
general discharge.

4.  The evidence of 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.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RTD__  ___CAD_  ___EEM _  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.


                                  ____Richard T. Dunbar____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070007097                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/09/27                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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