RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070013405 


	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:


Mr. John Infante

Chairperson

Mr. Eric N. Andersen

Member

Mr. David K. Haasenritter

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 honorable.   

2.  The applicant states, in effect, that all of his nonjudical punishment (NJP) received after the possession of marijuana charge was false and he refused to sign any of them.  His signature was taped onto other NJP’s.  He further contends that he requested a court-martial but it was consistently denied.  He further states that he was put into the stockade and medicated with Thorazine.  He believes that a great injustice was done to him and he deserves an honorable 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 5 March 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 12A1O (Pioneer).

3.  On 6 September 1969, the applicant was assigned for duty as a pioneer with the 237th Engineer Battalion, in the Federal Republic of Germany.

4.  On 29 September 1969, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful order issued by his commanding officer regarding female visitors to the barracks.  The punishment included reduction to private, pay grade E-2 (suspended); and 
14 days restriction and extra duty.   The applicant did not appeal the punishment. 

5.  On 26 January 1970, the applicant accepted NJP for leaving his guard post before being properly relieved.  The punishment included 14 days extra duty and restriction, and detention of $59.00 pay until 26 January 1971.  The applicant did not appeal the punishment.

6.  On 4 October 1970, the applicant was promoted to private first class, pay grade E-3.

7.  On 18 October 1970, the applicant was assigned for duty as a pioneer with the 326th Engineer Battalion, in the Republic of Vietnam.

8.  On 28 April 1971, the applicant accepted NJP for being absent from his place of duty for 25 minutes on 19 April and for a similar absence of 15 minutes on 
26 April.  The punishment included a reduction to private, pay grade E-2; forfeiture of $47.00 pay per month for 1 month; and 7 days extra duty.  The applicant did not appeal the punishment.

9.  On 12 June 1971, the applicant accepted NJP failing to report for morning and afternoon work formations.   The punishment included a reduction to private, pay grade E-1; and a forfeiture of $40.00 pay per month for 1 month (all punishment suspended).  The applicant did not appeal the punishment.  On 5 July 1971, the punishment was vacated.

10.  On 6 August 1971, the applicant accepted NJP for wrongful possession of marijuana.   The punishment included a forfeiture of $100.00 pay per month for 
2 months and 20 days extra duty.  The applicant did not appeal the punishment.  

11.  There are no other available records showing any additional NJP’s.  All NJP’s described above appear to have been accepted by the applicant and to bear his signature.  There is no evidence showing that his records were altered in any way.

12.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 17 November 1971, under the provisions of Army Regulation 635-212, for unfitness.  His service was characterized as under other than honorable conditions.  He had completed 
2 years, 8 months, and 3 days of creditable active duty service.




13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  On 19 December 1973, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s contention that his signature was forged on one or more NJP is not substantiated by any available evidence of record, or by any evidence presented by the applicant.  Furthermore, there is no indication that any of his available records were altered in any way.

3.  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.

4.  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

 __DKH__  __JI_____  __ENA      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.





____    John Infante ____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
 20080131
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.