RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070013145 


	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 that his discharge under other than honorable conditions be upgraded to honorable.  He further requests to personally appear before the Board.

2.  The applicant states that he was informed at the time of his separation that his discharge could be upgraded after 6 months. 

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 3 April 1974, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 68E (Aircraft Rotor and Prop Repairman).  

3.  On 17 April 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for sleeping on guard duty.  The punishment included a forfeiture of $40.00 pay per month for 1 month, and 14 days of restriction and extra duty.  The applicant did not appeal the punishment.

4.  On 12 December 1975, the applicant was promoted to specialist four, pay grade E-4.





5.  On 16 August 1976, the applicant accepted NJP for sleeping on guard duty and for not having a presentable uniform for guard mount.  The punishment included a reduction to private first class, pay grade E-3; forfeiture of $100.00 pay per month for 2 months (suspended); and 2 hours of extra duty for 40 consecutive days.  The applicant did not appeal the punishment.

6.  On 17 February 1977, the applicant extended his 3 April 1974 enlistment for 
3 months.

7.  On 1 July 1977, the applicant's commander submitted a DA Form 4126 (Bar to Reenlistment Certificate) requesting that he be barred from further service.  The commander stated that his conduct and efficiency were unsatisfactory; that he was twice punished by NJP for sleeping on guard duty; that he had three incidents of writing checks without sufficient funds in the bank; and that he had been counseled on six occasions between 14 July and 17 October 1976.  

8.  On 5 July 1977, the applicant was released from active duty and transferred to the United States Army Reserve.  His characterization of service was honorable.  He had completed 3 years and 3 months of creditable active duty.

9.  On 12 September 1980, the applicant enlisted in the Regular Army for 
4 years.  His DD Form 4/1 (Enlistment/Reenlistment Document) indicates in item 9 (Previous Military Service) that he had no prior active or inactive service.  He completed one station unit training at Fort Benning, Georgia, and was awarded MOS 11H (Heavy Anti-armor Weapons Crewman).

10.  On 28 October 1983, the applicant reenlisted for 6 years in the Regular Army.  His DD Form 4/1 indicates in item 9 (Previous Military Service) that he had completed 6 years, 4 months, and 16 days of active duty; and had 2 years and 9 months of inactive service.

11.  DA Form 4126 (Bar to Reenlistment Certificate) dated 27 February 1984, requested that the applicant be barred to further service.  The commander stated that he had received NJP for violation of Article 86, UCMJ in 1981, and for violation of Article 92, UCMJ in 1982.  He further stated that the applicant had violated Article 83, UCMJ, by fraudulent enlistment.  The appropriate authority approved the action.




12.   The discharge packet is missing from his military records.  However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was administratively discharged on 29 March 1984, under the provisions of Army Regulation 600-200, paragraph 7-17, for fraudulent entry.  His service was characterized as under other than honorable conditions.  He had completed 
6 years, 9 months, and 18 days of creditable active duty.

13.  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.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry level status the characterization will be uncharacterized.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence of record to fully consider this case, a formal hearing is not warranted.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

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 the aforementioned requirement.
5.  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 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
AR20070013145
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.