RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070007230 


	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



Analyst

The following members, a quorum, were present:




Chairperson



Member



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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that the reason he was discharged was not because of unsatisfactory performance.  He wanted out of the military because he was working under cover for CID, he helped the CID in their drug busts.  The word got out that he was helping the CID and he was attacked by 7 people.  He was moved off that post under guard and he had to hide out for 3 to 4 days in a safe house.  He was promised to be sent back to the states, however, that did not happen.  He was sent to another post about 40 miles down the road.  It just so happened that the people knew where he came from and he was again confronted and had a fight with about 10 people.  He was told as a gun was being held to his head that if he was smart he should not come back.  He informed the CID about his problem and was told not to worry.  He told his parents about the situation and his father called the CID agent, he was then moved to Fort Sill Oklahoma, where he later got married.  The applicant adds that when his wife was pregnant she was given a drug that he believes caused his wife to miscarry.  The Army tried to hide the fact that they had killed his child and then his wife’s medical records were lost.  After what happened in Germany and then at Fort Sill Oklahoma, he wanted out of the Army.  His company commander told him the only way he could get out of the Army was to accept a general discharge under honorable conditions, so that was what he did.  He now feels that he should have an honorable discharge after all he has gone through.   

3.  The applicant provides no additional documents 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 record shows that he enlisted in the Regular Army on 
17 November 1980, for a period of 4 years.  He completed the required training and was awarded Military Occupational Specialty (MOS) 51N (Water Treatment Specialist).  The highest grade he attained was pay grade E-3.  

3.  On 14 April 1982, the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 5 January to 16 March 1982.  His imposed punishment was a reduction to pay grade E-1 (suspended for 6 months) and a forfeiture of $200.00 pay per month for 2 months.

4.  Between August and September 1982, the applicant was counseled on six different occasions for failure to repair, for missing formation, for being AWOL, for his military bearing and for unsatisfactory duty performance.  

5.  On 14 October 1982, the applicant was convicted by a summary court-martial of being AWOL from 14 to 28 September 1982.  He was sentenced to a reduction to pay grade E-1 and confinement at hard labor for 20 days.     

6.  On 21 October 1982, the applicant was barred from reenlistment.  The applicant was advised of his rights to appeal the bar.  The commander’s stated reason for the bar from reenlistment was because the applicant was charged with three punishable offenses prior to leaving Germany and since being assigned to Fort Sill, Oklahoma, his performance failed to improve.  The applicant was repeatedly counseled by his immediate supervisor about absenteeism and tardiness, not to mention his inability to get along with his supervisor.  The commander further stated that the applicant was a constant problem for his section, and was unsuitable for continued service in the US Army and should be barred from the Army.

7.  On 10 November 1982, his unit commander notified the applicant that he was initiating action to separate him under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance with wither an Honorable or General discharge.  The unit commander based this action on the applicant’s formal counseling sessions for a myriad of performance and conduct related infractions.  

8.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action for unsatisfactory performance, its effects and of the rights available to him.  Subsequent to this counseling, he waived his right to have his case considered by an administrative separation board and he did not elect to submit statements in his own behalf.  

9.  On 12 November 1982, the separation authority approved the applicant’s separation, waived rehabilitation, and directed that the applicant be separated with a discharge under honorable conditions.  On 17 November 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13 with a discharge under honorable conditions.  The DD Form 214 he was issued confirms he completed a total of 2 years, and 1 day of active military service.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 

11.  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.

12.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions, in effect, that his discharge should be upgraded because of all that he went through while he was in the Army, were carefully considered.  However, the there is no evidence in his Official Military Personnel File (OMPF) nor has the applicant submitted any evidence to support any of his allegations.  Therefore, given the circumstances in this case, there is no basis for granting his request.  
2.  The evidence of record also reveals that the applicant had a record of disciplinary infractions that ultimately led to his discharge.  Further, his record reveals no acts of valor, significant achievement, or service warranting special recognition.  Therefore, it is concluded that his discharge under honorable conditions accurately reflects his overall record of service.  

3.  The evidence of record confirms the applicant’s unit commander notified him of the contemplated separation action and that he consulted with legal counsel.  It further shows that after being advised of the basis for the contemplated separation action and its possible effects, he voluntarily elected to waive his right to have his case considered by a board of officers and he elected not to submit a rebuttal statement in his own behalf. 

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met; the rights of the applicant were fully protected throughout the separation process.  

5.  Therefore, the type of discharge directed and the reasons were appropriate considering all the facts of the case.  In view of the foregoing and given the circumstances in this case there is no basis for granting the applicant’s request.  

6.  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

__LDS___  ___CD__  __QAS __  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.





______
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/14
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.