RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009917 


	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

Ms. Judy Blanchard

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Gerald J. Purcell

Member

Mr. John Heck

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 is currently under a doctor’s care because he has mental health issues which may have been caused by child abuse and neglect, which occurred during his formative years.  He spent the last 30 years of his life homeless as a result of these mental health issues.  He is now coming to terms with them through medication and therapy.  He firmly believes that a discharge upgrade would result in helping him overcome these obstacles and in due course assist him in providing a better life for himself.

3.  The applicant provides a self-authored letter, 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 record shows that he initially enlisted in the Regular Army and entered active duty on 29 December 1976.  He was trained in and awarded military occupational specialty (MOS) 05B (Radio Operator).  The highest grade he attained was pay grade E-3.

3.  On 9 September 1977, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order and for being disrespectful in language toward a noncommissioned officer.  His imposed punishment was a reduction to pay grade E-1 (suspended for 2 months), a forfeiture of $50.00 pay (suspended for 
2 months), 14 days restriction, and 14 days extra duty.  

4.  On 25 July 1978, the applicant was convicted by a Special Court-Martial of two specifications of being absent without leave (AWOL) from 12 June to 7 July 1978 and from 10 to 13 July 1978.  He was sentenced to confinement at hard labor for 45 days, a forfeiture of $200.00 pay per month for 2 months, and a reduction to pay grade E-1.

5.  On 31 August 1978, the applicant accepted NJP for willfully disobeying a lawful order from his superior noncommissioned officer.  His imposed punishment was a forfeiture of $90.00 pay ($30.00 of which was suspended for 60 days), and 14 days restriction and 14 days extra duty (suspended for 60 days).

6.  Between September 1977 and October 1978, the applicant was counseled on 
numerous occasions for failing inspections, for his military appearance, for his negative attitude and conduct, and for unsatisfactory performance of duty. 

7.  On 6 October 1978, the applicant was notified by his unit commander that separation action was being initiated on him under the provisions of chapter 
14 -33b, Army Regulation 635-200, by reason of Misconduct (Frequent incidents of a discreditable nature), with a discharge under other than honorable conditions.  The commander’s reason for the proposed action included the applicant’s special court-martial and two NJP’s.  The applicant was sent to correctional training and treatment necessary to return him to duty as a well trained Soldier with improved attitude and motivation.  However, the applicant’s actions since returning to his unit demonstrated little desire to be a productive Soldier.

8.  On 11 October 1978, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

9.  On 18 October 1978, the appropriate authority approved the recommendation and directed the issuance of a discharge under other than honorable conditions (UOTHC).  It was further recommended that the rehabilitative requirements be waived.  On 20 October 1978, the applicant waived a medical examination.  There is no evidence that the applicant received a mental evaluation. 

10.  On 20 October 1978, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14-33b(1) by reason of Misconduct, with a discharge UOTHC.  The separation document (DD Form 214) he was issued at the time confirms that he held the rank of private/E-1 (PV1), and had completed a total of 1 year, 7 months, and 4 days of active military service and 76 days of time lost.

11.  Army Regulation 635-200 sets forth the policy 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.  Army policy states that a discharge UOTHC is normally considered appropriate.

12.  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, 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.

13.  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 contentions of the applicant were carefully considered; however, there is no evidence and the applicant has not provided sufficient evidence that shows he was diagnosed with and/or treated for a mental or medical condition at the time of his discharge.  

2.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, was based upon his misconduct for his frequent incidents of a discreditable nature.  

3.  The evidence of record shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Thus, the applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his discharge.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __GP  __  _JH_____  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 D. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20070009917
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
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.
144
2.

3.

4.

5.

6.