RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012742 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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, in effect, that his undesirable discharge be upgraded to general under honorable conditions.   

2.  The applicant states that he had a good military record during his first enlistment.  He made mistakes during his second enlistment which he regrets. He is proud of his military service and has not been in any trouble since his last discharge.  

3.  The applicant provides no additional documentation.

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.  On 26 January 1973, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).

3.  On 21 June 1973, the applicant was assigned for duty as a wheel vehicle mechanic with the 307th Signal Battalion, in the Republic of Korea.  He performed this duty until his return to the United States on 8 July 1974, for duty at Fort Campbell, Kentucky.

4.  On 30 October 1974, the applicant was discharged for the purpose of immediate reenlistment.  His characterization of service was honorable.  He had attained the rank of specialist four, pay grade E-4, and had completed 1 year, 
9 months, and 26 days of creditable active duty.  On 31 October 1974, he reenlisted for 3 years.

5.  On 9 June 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for operating a passenger car in a reckless manner.  His punishment included a forfeiture of 
$50.00 pay per month for 1 month, and 7 days restriction.

6.  On 26 May 1976, the applicant accepted NJP for being incapacitated due to alcohol consumption.  His punishment included a forfeiture of $100.00 pay per month for 1 month, and 30 days extra duty.

7.  On 19 July 1976, the applicant accepted NJP for willful disobedience of a lawful order from his superior noncommissioned officer and for being disrespectful in language toward the same noncommissioned officer.  His punishment included a reduction to private, pay grade E-2; and 30 days extra duty.

8.  On 22 July 1976, charges were preferred under the Uniform Code of Military Justice for violation of Article 134 for unlawfully, knowingly, and intentionally possessing marijuana and amphetamines. 

9.  On 4 August 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

11.  On 20 August 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 24 August 1976, the applicant was discharged accordingly.  He had completed a total of 3 years, 6 months and 29 days of creditable active military service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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 trail by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

14.  Under the UCMJ, as in effect at the time, the maximum punishment allowed for violation of Article 134, for wrongful possession of controlled substances included a punitive discharge and confinement for 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  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.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant has not provided any evidence or mitigating argument showing that his post-service conduct has been of such quality as to warrant an upgrade of his discharge.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LCB___  __PMS __  _SLP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




___Shirley L. Powell___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20080129
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.