RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070016372 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Frank C. Jones, II

Chairperson

Ms. Carmen Duncan

Member

Mr. Scott W. Faught

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 under other than honorable conditions discharge be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded.

3.  The applicant does not provide any 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.  The applicant's military personnel record shows that he enlisted in the Army National Guard on 8 August 1979.  He completed the necessary training and was awarded the military occupation specialty (MOS) 94B (Cook).  

3.  The applicant was ordered to involuntary active duty on 22 January 1980 due to his unsatisfactory participation in the Army National Guard.  He completed his training in MOS 36K (Tactical Wire Operator Specialist). 

4.  Between 4 April 1980 and 15 May 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two occasions, once for being absent without leave (AWOL) during the period 19 March 1980 to 25 March 1980 and once for stealing a pool cue the property of the U.S. Army.

5.  On 24 September 1981, the applicant was convicted by a special court-martial for wrongfully having in his possession 50.72 grams more or less of marijuana to introduce into a military unit.  The court-martial sentenced the applicant to a forfeiture of $300.00 per month for 5 months, and confinement for 5 months.

6.  The applicant's discharge packet was not included in his records.  However, the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under other than honorable conditions on  
9 November 1981 for frequent involvement in incidents of discreditable nature with civil or military authorities under the provisions of Army Regulation  
635-200 (Personnel Separation), Chapter 14.  He had completed a total of  
1 year, 7 months, and 22 days of Net Active Service This Period and accrued  
59 days of lost time.

7.  The applicant applied to the Army Discharge Review Board (ADRB) on 
19 August 1982.  On 3 May 1983, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable based on the applicant's two Article 15s, his special court-martial for an extremely serious offense, and repetitive unsatisfactory performance.  The applicant’s request for upgrade of his discharge was denied.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a general or an honorable discharge.

2.  The applicant's records contain no evidence of any error or injustice as it pertains to his discharge from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 14.

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 this requirement.  Therefore, he is not entitled to correction of his records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ _FCJ__  __CD ___  __SWF  _  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.




___Frank C. Jones  ___
      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.