RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 October 2007
	DOCKET NUMBER:  AR20070008185 


	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. Hubert O. Fry, Jr.

Chairperson

Mr. Michael J. Flynn

Member

Mr. William Blakely

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 was court-martialed for drug use and sentenced to confinement.  Upon his release, he was sent back to his unit.  He was transferred 4 months later without being told the reason for the transfer and was eventually discharged without being afforded the opportunity to recover.

3.  The applicant did not provide any 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 14 September 1983.  He completed basic combat and advanced individual training, was awarded military occupational specialty (MOS) 11B (Infantryman), and was assigned to Fort Lewis, Washington with duty in his MOS.  The highest rank he attained while serving on active duty was private/pay grade E-2.

3.  The applicant's records show that he was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) during his active duty tenure.  The applicant's records do not show any significant acts of valor during his military service.

4.  Item 2 (Synopsis of Specifications, Including Date of Offense) of the applicant's DA Form 2-2 (Insert Sheet to DA Form 2-1 Record of Court-Martial Convictions) shows that the applicant was court-martialed for larceny, falsely making a check, and possession of marijuana. 

5.  On 26 July 1984, the applicant pled guilty at a Special Court-Martial to one specification of larceny, one specification of falsely making a check, one specification for use of marijuana, and one specification of possession of marijuana.  The Court sentenced him to a forfeiture of $397 pay for 6 months, confinement for 6 months, and reduction to the lowest grade.  

6.  On 13 September 1984, the convening authority approved a sentence of confinement at hard labor for 3 months, a forfeiture of $397 for 3 months, and reduction to the grade of private/E-1.  The applicant was confined at the Fort Lewis Installation Confinement Facility. 

7.  The applicant's records show that he was confined during the period 30 August 1984 through 8 November 1984.  He was reassigned to another Infantry unit on Fort Lewis for a short period of time. 

8.  On 18 April 1985, the applicant's immediate commander initiated a memorandum advising the applicant of his intent to recommend his separation from the Army for unsatisfactory performance and disqualification for further service under chapter 13 of Army Regulation 600-200 (Personnel Separations).

9.  On 18 April 1985, the applicant consulted with legal counsel and was advised of the nature of the offenses for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of an undesirable discharge, the nature and effect of his pledge to perform alternate service, and of the procedures and rights available to him. 

10.  On 18 April 1985, the immediate commander initiated separation action against the applicant in accordance with chapter 13 of Army Regulation 635-200. The commander stated that the applicant exhibited a defective attitude and inability to expand his efforts effectively.  He added that despite formal counseling efforts and trial by a Special Court-Martial, the applicant continued to show no improvement.  The commander concluded that in his judgment, reassignment for rehabilitation was not warranted and that the applicant did not show any signs of improvement and did not respond positively to counseling and continued to display a poor attitude toward the Army and his duties.

11.  On 19 April 1985, the separation authority approved the applicant's discharge from the Army for unsatisfactory performance and directed that he receive a General Discharge Certificate.  On 25 April 1985, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year, 5 months, and 1 day of creditable active military service and 71 days of lost time due to confinement.
12.  The applicant's records show that his commander firmly stated that in his judgment, a second chance was not warranted since the applicant did not show any signs of improvement and did not respond positively to counseling and continued to display a poor attitude towards the Army and his duties.

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

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's records reveal a disciplinary history which includes an instance of a special court-martial.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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


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 an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__hof___  __mjf___  __wb____  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.




							Hubert O. Fry, Jr.
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070008185
SUFFIX

RECON

DATE BOARDED
20071023
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19850425
DISCHARGE AUTHORITY
AR 635-200, Chap 13
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.