RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070008149 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. Sabree

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 that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states that his sister died and that he absented himself without leave (AWOL).  He states that he made a mental error in judgment.  He states that he tried to get in touch with this first sergeant and that he returned to his unit a couple of days later.  He states that he has been a productive citizen since he left the Army and that he has no criminal record.

3.  The applicant provides no 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.  On 16 September 1992, the applicant enlisted in the Army in Dallas, Texas, for 4 years, in the pay grade of E-1.  He successfully completed his training as a multiple launch rocket system automated tactical data systems specialist.  On 16 March 1993, he was promoted to the pay grade of E-2.

3.  On 2 July 1993, the applicant was counseled for being disrespectful in language towards a senior Soldier.  He was informed that his actions were punishable under the Uniform Code of Military Justice (UCMJ) and that his attitude and conduct would not be tolerated.  He was further informed that if his behavior continued to occur, corrective measures under the UCMJ would be taken.



4.  The applicant was counseled on 9 July 1993, for failure to report for duty.  He was again informed that his actions were punishable under the UCMJ and that the General Counseling Form that was prepared would be forwarded to his noncommissioned officer in charge.

5.  He was promoted to the pay grade of E-3 on 1 December 1993.

6.  On 11 February 1994, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 3 January 1994 until 5 January 1994.  His punishment consisted of a reduction to the pay grade of E-2, restriction for 14 days and extra duty for 14 days.

7.  On 14 February 1994, the applicant was counseled as a result of his commander receiving a letter of indebtedness from Post Credit Incorporated in the amount of $113.40.  He was told that, although he had previously discussed his situation with his senior noncommissioned officer (NCO), he was not released from the responsibility of paying or making some sort of arrangement with his creditor.  The applicant was told that his creditor stated that he promised to pay on two separate occasions and failed to do so both times.  He was told that he had acted irresponsibility by letting the situation happen.  The applicant was further counseled regarding his previous receipt of letters of indebtedness from Convenient Loan Company for $113.40 and from Triangle Credit Company in the amount of $117.00.  He was told that he showed a complete lack of concern for fulfilling his financial obligations, as he had received a complete and full pay check on 1 February 1994 and he still made no attempt to reconcile his debts.  The applicant was told that his actions were serious and that any further letters of indebtedness may lead to his being recommended for punishment under the UCMJ and his separation from the Army.

8.  The applicant was counseled again on 21 March 1994, for failure to pay his debts.  He was told that his senior NCO received a telephone call from Pioneer Loan Company who stated that he was 3 months behind in payments.  According to Pioneer Loan Company, the applicant stated that he was going to come by and make a payment but failed to do so.  The applicant was informed that he had previously been counseled regarding his debts and he was again informed that his behavior would not be tolerated.  As corrective training, arrangements were made for him to attend a class on arranging his finances.





9.  On 31 March 1994, the applicant was notified that he was being recommended for a bar to reenlistment.  His commander cited a garnishment of pay for missed payments of his debts; four letters of indebtedness; and eight counseling statements on indebtedness, disrespect, failure to report for duty, not being at his appointed place of duty, late and missed formations and the conditions of his room at room inspection as the basis for the recommendation.  The applicant opted not to submit a statement in his own behalf and the bar to reenlistment was approved on 1 April 1994.

10.  On 13 April 1994, NJP was imposed the applicant for being AWOL from 24 March 1994 until 25 March 1995.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay in the amount of $416.00 per month for 2 months, restriction for 45 days and extra duty for 45 days.

11.  On 6 May 1994, the applicant was counseled on all of his prior acts of misconduct.  He was informed that if his behavior continued, action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 14, would be initiated.  He was further that the least favorable discharge that he may be issued was a discharge under other than honorable conditions and that loss of benefits may occur.  The applicant was informed of the affects of a less than honorable discharge and that he may encounter substantial prejudice in civil life.

12.  The applicant was counseled on 16 August 1994 for failure to make payment on his debts.  He was informed that his conduct was not acceptable and would subject him to elimination proceedings under the provisions of Army Regulation 635-200, chapter 14.  He was directed to make some form of restitution.

13.  On 11 September 1994, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct, based on a pattern of misconduct.  He acknowledged receipt of the notification on 1 December 1994 and, after consulting with counsel, waived his rights opting not to submit a statement in his own behalf.

14.  However, on 27 September 1994, the applicant submitted a statement in his own behalf requesting that he either be allowed to stay in the Army or be furnished an "upgraded discharge".  He stated that he had two deaths in the family within one year, his sister and his cousin.  He stated that, and other family 




problems caused him to go AWOL.  He stated that he should have been "cut some slack" because he was only a few hours late in his return.  He stated that the only reason that he had NJP imposed against him was because he filed an Equal Opportunity Complaint on his commanding officer.  He stated that he began having marital problems, which resulted in his financial situation.  He stated that he believed that he was getting a "raw deal out of this" just because of a woman that was doing too much wrong and getting away with murder.  The applicant stated that ever since the new staff sergeant came into his section, he was being taught the right things which included budgeting his money; participating in different classes; and pointing out the right direction for him to go to file charges on his wife for forgery and to get a divorce.  He requested that he be given another chance to be a Soldier or that he be given an "upgrade of his chapter".

15.  On 20 December 1994, the appropriate authority approved the recommendation for discharge and he directed that the applicant be discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to a pattern of misconduct.  He had completed 2 years, 3 months and 13 days of net active service.

16.  A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, convictions by civil authorities, desertion or absence 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief in this case.  The evidence of record shows that aside from being AWOL for the 1 day that he admits to, he was counseled on numerous occasions for failure to pay his debts; being disrespectful in language towards his senior NCOs; failure to report for duty; not being at his appointed place of duty; and missing formation.  Considering his numerous acts of indiscipline, it does not appear that his discharge under other than honorable conditions is too harsh.

4.  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 this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CD     _  __LDS___  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
AR20070008149
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATION DISCHARGE
2.  661
144.6700/PATTERN OF MISCONDUCT
3.

4.

5.

6.