RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070009691 


	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:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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 that he did not appear before a court-martial or a military judge prior to his discharge.  He further adds that he did not commit any offenses and that his commander separated him out of prejudice.  He had a bad experience with discrimination issues with higher ranking officers and was happy to get out of that degrading environment.  He also attributes corruption in today’s society to people who have the power but not the maturity over others.  He concludes that he served his full three years and would like to have the credibility that he served his country.

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 5 October 1978 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  Records further show that he served in Germany during the period 14 January 1979 through 29 September 1981 and the highest rank he attained during his military service was private first class/pay grade E-3.

3.  The applicant's records show that he was awarded the Army Service Ribbon and the Overseas Service Ribbon.  His records do not show any significant acts of valor during his military service.

4.  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 16 October 1979, for disobeying a lawful order on or about 8 October 1979.  His punishment consisted of reduction to the grade of private/pay grade E-2 (suspended), forfeiture of $75 pay for one month, 14 days of restriction, and 14 days of extra duty.

	b.  On 19 March 1980, for failing to follow a lawful order by going to an off limits establishment on 29 February 1980; being drunk and disorderly in uniform in a public place on 1 March 1980; and for wrongfully possessing one ounce, more or less, of hashish, on or about 1 March 1980.  His punishment consisted of reduction to the grade of private/pay grade E-2 (suspended for 90 days), forfeiture of $250 pay per month for two months, and 30 days of extra duty. 

	c.  On 2 August 1980, for going, without authority, from his appointed place of duty (guard post), on or about 27 July 1980.  His punishment consisted of forfeiture of $100 pay for one month, 14 days of extra duty, and 14 days of restriction.

	d.  On 20 May 1981, for committing an assault against another Soldier by pulling a switch blade on him with a likely intent to produce grievous bodily harm, on or about 27 March 1981, and for being drunk and disorderly in quarters on or about 18 May 1981.  His punishment consisted of reduction to the grade of private/pay grade E-1, forfeiture of $250 pay per month for two months, 45 days of extra duty, and 45 days of restriction.

5.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows that the applicant was reported absent without leave (AWOL) from 29 July 1981 through 18 August 1981.

6.  The facts and circumstances surrounding the applicant’s discharge proceedings are not available for review with this case.  However, it appears that the separation authority approved the applicant’s separation for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) and directed the applicant be reduced to the lowest enlisted grade prior to discharge and be issued an Under Other Than Honorable Conditions Discharge Certificate.


7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged on 13 November 1981 with an under other than honorable conditions discharge.  This form further confirms that he completed a total of 3 years and 19 day of creditable active military service and 21 days of lost time due to AWOL.

8.  The applicant's records do not reflect any instances of prejudice or any indications that he suffered discrimination.  The records further do not show that the applicant addressed any discrimination issues with his chain of command or with any supporting facilities at the installation to which he was assigned.  

9.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge.

10  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge.

2.  There is no evidence in the applicant's record that he suffered any discrimination during his military service or that prejudice contributed to his repeated patterns of misconduct and indiscipline.

3.  In the absence of the facts and circumstances surrounding the applicant’s discharge proceedings, it is presumed that the discharge proceedings were conducted in accordance with law and regulation applicable at the time.  

4.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were presumably met, and the rights of the applicant were presumably fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  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 did not submit evidence that would satisfy that requirement.  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 either a general or an honorable discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lcb___  __ded___  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.



						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009691
SUFFIX

RECON

DATE BOARDED
20071115
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19811113
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.