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ARMY | BCMR | CY2007 | 20070008345
Original file (20070008345.TXT) Auto-classification: Denied


RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   3 January 2008
	DOCKET NUMBER:  AR20070008345 


	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. Rial D. Coleman

Analyst

The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 be upgraded to honorable and that his record be corrected to show he contributed to the Post-Vietnam Era Veterans' Educational Assistance Program.

2.  The applicant states that his actions as a young man were not a true reflection on the type of person he was.  The applicant continues that his age, immaturity, and the loss of his father were the cause of the indiscipline which resulted in his discharge.  The applicant concludes that he contributed one-hundred dollars per month for a period of twelve months to the Montgomery GI Bill.

3.  The applicant does not provide any additional documentary evidence in support of this 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 he enlisted in the Army at the age of 18, entered active duty on 29 January 1986 and served until his separation on 
2 February 1988.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 88M (Motor Transportation Operator).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

3.  The record reveals a disciplinary history that includes trial by summary court-martial for the following offenses:  breach of peace and drunk and disorderly.  The record also includes the applicant's acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the following offenses:  wrongful possession and use of a controlled substance and driving while intoxicated.  Punishments included reduction in grade, forfeiture of pay and allowances, and confinement in the hands of military authorities.

4.  On 13 November 1987, the unit commander advised the applicant that she was recommending his discharge under the provisions of Army Regulation 
635-200 (Personnel Separations) for commission of willful acts in violation of the Uniform Code of Military Justice.  The commander also informed the applicant that she was recommending a General Discharge and of his right to consult with counsel.

5.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel contingent upon receiving a characterization of service or description of separation no less favorable than under honorable conditions-otherwise known as a "General" discharge.

6.  On 11 January 1988, the separation authority directed the applicant’s separation under the provisions of Chapter 13 of Army Regulation 635-200 and that he receive a General Discharge Certificate.  On 2 February 1988, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time, confirms the applicant completed a total of 1 years, 11 months, and 27 days of creditable active military service.  The DD Form 214 also shows eight days of lost time during the applicant's enlistment.

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 3-7b, in effect at the time of the applicant’s separation, 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.


9.  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.

10.  The record shows no indication that the applicant contributed to the Post-Vietnam Era Veterans' Educational Assistance Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge based on his allegation that his indiscipline was caused by the loss of his father and his youth and immaturity at the time of his military service was carefully considered and determined to be without merit.  The applicant's contention that his record should be corrected to show he contributed to the Post-Vietnam Era Veterans' Educational Assistance Program was also carefully considered and determined to be without merit.

2.  Records show that the applicant was 20 years of age at the time of his offenses.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Evidence of records shows that the applicant disturbed the peace, was drunk and disorderly, wrongfully possessed and used a controlled substance, and drove while intoxicated.

4.  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 discharge.

5.  The record shows no indication that the applicant contributed to the Post-Vietnam Era Veterans' Educational Assistance Program.  Furthermore, the applicant failed to provide any documentary evidence is support of his contribution to the program.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AMC___  __DAC___  _REB__  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.





__Ann M. Campbell__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.


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