RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070009803 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Michael Flynn

Member

Ms. Sherry Stone

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 under other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he would like for his discharge to be upgraded so that he can obtain his benefits due to his disablements.  Also, he has served on active duty during the Grenada War. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active duty).

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 military service records show that he entered active duty on 10 August 1983.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 19E (M48-M60 Armor Crewman).

3.  On 15 August 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for stealing two speakers of an unknown value from his Company's Day Room.  This was a violation of Article 121, UCMJ.

4.  On 9 January 1985 and 24 April 1985, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being disrespectful in language toward a noncommissioned officer, violating a lawful general regulation by wrongfully possessing a lock blade knife, possession of three smoking devices with some amount of marijuana, and willfully disobeying a noncommissioned officer.  This was a violation of Articles 91, 92, and 112a, UCMJ.

5.  On 6 November 1985, charges were preferred against the applicant for being absent without leave (AWOL) during the periods 11 October to 18 October  
1985 and 1 November to 5 November 1985. 

6.  The applicant's discharge packet was not included in his records.  However, the DD Form 214 he was issued shows he was reduced to private/pay grade  
E-1 and was discharged under other than honorable conditions for civilian conviction under the provisions of Army Regulation 635-200 (Personnel Separation), Chapter 14 on 1 April 1986.  He had completed a total of 2 years,  
4 months, and 18 days of Net Active Service This Period and accrued 11 days time lost.

7.  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.

8.  Army Regulation 635-200 (Personnel Separations), currently in effect, 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 serious offense, conviction by civil authorities, desertion, or absences 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.

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.  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 under other than honorable conditions discharge should be upgraded to an honorable discharge so that he can obtain his benefits due to his disablements and that he served on active duty during the Grenada War.

2.  The applicant's contentions have been noted; however, these factors do not provide a sufficient basis for upgrade of his discharge.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.

3.  A presumption of regularity must be applied, that what the Army did was correct.  It is up to the applicant to prove otherwise.  The applicant has not submitted any documentation to overcome the presumption of regularity.  Therefore, he is not entitled to an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WP___  ___MF  __  __SS___  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.




____   William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20070009803
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071211
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.