RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070015967 


	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. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable

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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he did not receive fair treatment during his 5 years of military service.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214), and his Honorable Discharge Certificate from his first enlistment.

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 25 January 1977, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 76W1O (Petroleum Supply Specialist).

3.   On 25 November 1977, the applicant was assigned for duty as a fuel handler with the 229th Supply and Service Company, in the Federal Republic of Germany.

4.  On 27 July 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for sleeping at his guard post.  The punishment included reduction to private, pay grade E-2; a forfeiture of $100.00 pay per month for 1 month; and 30 days extra duty.

5.  On 29 October 1979, the applicant reenlisted in the Regular Army for 3 years. He elected a station-of-choice option to return to Fort Hood, Texas.

6. On 27 February 1980, the applicant was assigned for duty as a fuel handler with the 4th Squadron, 9th Cavalry Regiment, at Fort Hood, Texas.   

7.  On 15 May 1981, the applicant accepted NJP for missing formation.  The punishment included 45 days extra duty.

8.  On 3 June 1981, the applicant received a letter of reprimand.  The letter stated that on at least two occasions while attending the Primary Leadership Course he had demonstrated an unwillingness to participate in the class and brought embarrassment upon himself and the unit.  It further stated that he had been late for a mandatory formation and did not maintain his hair in accordance with military regulations.  

9.  On 21 September 1981, the applicant accepted NJP for failing to go to his place of duty.  The punishment included reduction to private, pay grade E-2; a forfeiture of $250.00 pay per month for 1 month; and 30 days custody in the correctional facility.

10.  On 6 November 1981, the applicant’s commander initiated a bar to reenlistment.  The commander based his action on the applicant’s record of NJP; non-payment of two just debts, one in the amount of $233.97 to another Soldier, and the other a telephone bill in the amount of $76.95.  The commander also cited the applicant’s failure to appear in civil court for a traffic violation; the applicant’s letter of reprimand; and three counseling sessions.  The bar to his reenlistment was approved by the appropriate authority on 9 November 1981.

11.  On 20 January 1982, the applicant accepted NJP for disobeying a lawful order from his superior noncommissioned officer.  The punishment included reduction to private, pay grade E-1, and 30 days extra duty and restriction.

12.  On 6 February 1982, the applicant was placed in pretrial confinement.

13.  On 24 February 1982, charges were preferred under the Uniform Code of Military Justice for violation of Article 111, Drunken Driving; for violation of Article 134 for wrongful possession of a trace amount of marijuana and for breaking restriction.

14.  On 9 March 1982, 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. 

15.  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.   

16.  On 12 April 1982, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 30 April 1982, the applicant was discharged accordingly.  He had completed a total of 5 years, 3 months and 6 days of creditable active military service.

17.  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.

18.  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.  A discharge under other than honorable conditions is normally considered appropriate.

19.  The UCMJ provides for a maximum punishment of a punitive discharge for violation of Article 111, Drunken Driving not resulting in personal injury; and for violation of Article 134 for breaking restriction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.
2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

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

__ JBG __  __RSV __  __DWS _  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.






___ James B. Gunlicks __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.