RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070009040 


	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. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 due to his medical condition, he was not responsible for his actions or the duties he was supposed to perform.

3.  The applicant did not provide any additional 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 16 March 1978.  He completed basic combat training and was dropped from advanced individual training (AIT) for military occupational specialty (MOS) 12E [Atomic Demolition Munitions (ADM) Specialist] due to lack of motivation and poor attitude.  He later completed AIT at another training base and was awarded MOS 12B (Combat Engineer). 

3.  The applicant's records show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  On 1 October 1979, the applicant pled "not guilty" at a Special Court-Martial to four specification of being absent without leave (AWOL) during the period from on or about 21 May 1979 to on or about 18 June 1979; from on or about
7 August 1979 to on or about 12 August 1979; from on or about 18 June 1979 to on or about 30 July 1979; and from on or about 30 July 1979 to on or about 6 August 1979.  The Court found the applicant guilty of all charges and specifications and sentenced him to reduction to the grade of private/pay grade E-1, forfeiture of $279 pay for four months, and confinement at hard labor for four months.  The sentence was approved on 23 October 1979.

5.  On 2 November 1979, the unexecuted portion of the applicant's sentence to confinement at hard labor for four months was suspended until 2 March 1980 per Special Court-Martial Order Number 319, dated 2 November 1979.  However, the suspended sentence was later vacated on 19 December 1979 per Special Court-Martial Order Number 392, dated 19 December 1979.

6.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 15 November 1979, for failing to obey a lawful order on 10 November 1979.  His punishment consisted of 5 days of restriction (suspended for 45 days, and later vacated) and 5 days of extra duty.

	b.  On 29 November 1979, for failing to obey an order on 23 November 1979; failing to obey an order on 20 November 1979 and twice on 22 November 1979; and possessing .05 grams, more or less, of marijuana.  His punishment consisted of forfeiture of $120 pay for one month, 20 days of extra duty, and 20 days of restriction.

7.  The applicant's records show that he was confined during the period 13 August 1979 through 1 November 1979 and during the period 19 December 1979 through 28 February 1980.

8.  On 9 January 1980, the applicant’s immediate commander initiated separation action against the applicant in accordance with paragraph 14-33 of Army Regulation 635-200 (Personnel Separation) for misconduct-frequent incidents of a discreditable nature.

9.  On 16 January 1980, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.

10.  On 22 January 1980, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct-frequent incidents, and directed the applicant be furnished an Under Other than Honorable Conditions Discharge Certificate.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged on 19 February 1980 with a characterization of service of Under Other Than Honorable Conditions.  This form further confirms that he completed a total of 1 year, 3 months, and 18 days of creditable active military service.  He also had 83 days of lost time due to AWOL and 153 days due to confinement.

11.  On 6 May 1982, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

13.  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.

14.  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



DISCUSSION AND CONCLUSIONS:

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

2.  There is no evidence in the applicant's records that his medical conditions contributed to his pattern of misconduct.

3.  The applicant's record of service shows that he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for disobeying lawful orders and wrongfully possessing marijuana.  Additionally, he was charged and was convicted for four specifications of AWOL.  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.  Therefore, the applicant is not entitled to a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__klw___  __lmd___  __mjf___  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.



							Kenneth L. Wright
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009040
SUFFIX

RECON

DATE BOARDED
20071106
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19800229
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.