RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 February 2008
	DOCKET NUMBER:  AR20070016233 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. John G. 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 that his discharge under other than honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states that his last term of service was for 3 years.  He states that it was during his last year that he failed as a Soldier due to a drinking problem which continued for an additional 2 years after his discharge.  He states that he realizes that he cannot change his past; however, he would like the chance to move ahead in his life and in his career.  

3.  The applicant provides in support of his application, an undated, self authored letter of explanation which is titled "Request for Waiver."

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 18 June 1974, the applicant enlisted in the Army in Portland, Oregon, for 3 years, in the pay grade of E-1.  He successfully completed his training as a wheel vehicle mechanic.  He was promoted through the ranks and he obtained the rank of specialist four (E-4) on 29 March 1976.

3.  The applicant was honorably discharged on 4 April 1977, for the purpose of immediate reenlistment.  He had completed 2 years, 9 months and 17 days of net active service.

4.  On 5 April 1977, the applicant reenlisted in the Army for 3 years, in the pay grade of E-4.  He was promoted to the pay grade of E-5 on 13 January 1978.  He reenlisted for 4 years on 19 December 1979.  

5.  On 23 October 1978, nonjudicial punishment (NJP) was imposed against the applicant for violating a lawful general regulation by purchasing $180.00 in rations when he was authorized only $160.00 in rations.  His punishment consisted of a forfeiture of pay in the amount of $50.00, and extra duty for 20 days.

6.  On 10 April 1981, NJP was imposed against the applicant for two specifications of failure to go at the time prescribed, to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-4 (suspended for 30 days), a forfeiture of pay in the amount of $100.00, and restriction for 30 days.

7.  The available records show that the applicant was barred from reenlistment as a result of the NJP that was imposed against him on 10 April 1981.  On 19 November 1982, he requested a waiver of disqualification for reenlistment.  The request was approved on 6 December 1982, and that on 8 December 1982, he extended his 4-year enlistment for 1 month.

8.  On 12 December 1983, an investigation was initiated and the applicant was questioned by the military police for suspicion of drunk and disorderly conduct, curfew violation, wrongful possession of a Ration Control Plate (belonging to another Soldier) and, wrongful possession of an Armed Forces Identification Card (belonging to another Soldier).  At the end of the investigation the investigating officer and the Staff Judge Advocate opined that sufficient evidence existed to cite the applicant for all of the offenses.

9.  On 30 December 1983, an investigation was initiated and the applicant was questioned by the military police for suspicion of larceny of Government Property and wrongful disposition of Government Property.  During the investigation, the applicant admitted that he took one air compressor with hose and spray unit from the motor pool with the intent to sell it.  At the end of the investigation, the investigating officer and the Staff Judge Advocate revealed that there was sufficient evidence to cite the applicant for the offense of larceny of Government property.

10.  On 1 February 1984, an investigation was initiated and the applicant was questioned by the military police for suspicion of making repetitive purchases.  During the investigation, the applicant was asked to present items that were listed on the excess purchase roster.  These items included two color television sets.  The applicant admitted to selling the items to one unknown person.  

11.  Although the charge sheet pertaining to these incidents is unavailable for review, the available records indicate that charges were preferred against the applicant on 27 February 1984 and referred to a special court-martial.

12.   The facts and circumstances pertaining to the applicant’s discharge are not on file.  The Certificate of Release or Discharge from Active Duty (DD Form 214) that he was furnished shows that he was discharged on 28 March 1984, under other than honorable conditions, under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was furnished a reentry eligibility (RE) code of RE-3.

13.  A review of the available record fails to show that the applicant was suffering from an alcohol problem at the time of his discharge from the Army.

14.  On 17 June 1985, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

15.  In the Request for Waiver that the applicant submitted in support of his application, he states that in 1983, he was addicted to alcohol and he let it run his life.  He states that during that time, he allowed himself to get involved with the wrong people; he neglected his duties as a noncommissioned officer; and he got arrested for being drunk and disorderly.  He states that during his arrest, the military police found a ration card in his possession that was not his and he refused to answer any questions regarding the incident, primarily because he was ashamed of his actions and how far he had let himself go.  He states that he only remembers that he was told he would have to face a court-martial for what he had done.  He contends that he still does not know what the charge was going to be; however, he was told by the prosecutor that he would have to wait for arraignment and that it would take some time because the court was busy.  He states that he was placed in pretrial confinement and then he was restricted to the barracks.

16.  In the Request for Waiver, the applicant states that he was retained past the expiration of his term of service and that he was not allowed to reenlist until he was called into the defense attorney's office and told by their office that he would not be going to court until mid to late October 1984.  He states that, although his attorney never informed him of the exact charges pending against him, he was advised by his attorney to take a discharge under other than honorable conditions.  He states that he trusted his attorney; therefore, he took his advice.  He states that he cannot understand how he could have allowed himself to get 


kicked out of the Army and yet he continued to drink and sink lower into the pit that he had dug for himself.  He concludes by stating that he his now a successful certified auto technician and that he is looked up to for guidance and direction; that he believes he would be an asset to the Armed Forces; that he wishes that he could change the past and to not make the mistakes that he made in his youth; and that he should be able to give back to this country all that he has received from this country.

17.  Army Regulation 635-200 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

18.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.

19.  An RE-3 applies to persons not qualified for continued Army Service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years from separation is required before a waiver may be submitted.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief in this case when compared to the seriousness of his offenses.



3.  The available evidence indicates that the applicant's acts of misconduct were intentional and repeated.  He admitted to larceny of Government Property; to purchasing excess rations; and to purchasing excess merchandize that he illegally sold and illegally attempted to sell.  There is no evidence in the available record, nor has the applicant submitted any evidence to support to his contention that he had an alcohol problem while he was in the Army and the fact that he now contends that he did is an insufficient justification for upgrading his discharge.

4.  In regard to the applicant's Request for Waiver, there is insufficient evidence to support the applicant’s request to waive the disqualification which is the basis for his RE code.  This does not mean that he has been completely denied the opportunity to reenlist.  Recruiting personnel have the responsibility for determining if an applicant meets the current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program).  Therefore, since enlistment criteria does change, and since he has the right to apply for a waiver, it is suggested that the applicant periodically visit his local recruiting station to determine if he should apply for a waiver.

5.  In order to justify correction of a military record the applicant must show 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.

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

__LDS__  __LMD_  _  __JGH__  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.




____Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR20070016233
SUFFIX

RECON

DATE BOARDED
20080226
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE DISCHARGE
2.  689
144.7000/FOR THE GOOD OF THE SERVICE
3.  715
144.7200/LARCENY
4.

5.

6.