RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 April 2008
	DOCKET NUMBER:  AR20070017531 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Larry W. Racster

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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that at the time he was young and did not make sound decisions.  Since leaving the military, he has been employed and raised two daughters.  He states that he has changed his ways by getting his life together and has become a responsible person in his community.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 7 January 1981 and two letters of support from associates.

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 was born on 11 October 1961.  He enlisted in the Regular Army on 21 November 1978 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11C (Indirect Fire Infantryman).  

3.  On 25 June 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for using disrespectful language towards a noncommissioned officer (NCO).

4.  On 12 August 1980, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order and being absent from his appointed place of duty.




5.  On 16 October 1980, the applicant was convicted, contrary to his plea, by a special court-martial of disobeying a lawful order from an NCO.  His sentence consisted of a forfeiture of $334.00 pay per month for three months and confinement at hard labor for 30 days.

6.  On 5 December 1980, the applicant accepted NJP under Article 15, UCMJ for assaulting a fellow Soldier (striking him with a closed fist).

7.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 7 January 1981 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of "Frequent involvement in incidents of discreditable nature with civil or military authorities" with a characterization of service of under other than honorable conditions.  The applicant completed a total of 2 years and 25 days of creditable active service with 20 days lost time due to confinement.

8.  The applicant provided a letter of support from the Senior Auditor/
Correspondent Lending, National City Mortgage Correspondent Lending, Pittsburgh, Pennsylvania, dated 17 October 2007.  The author stated that she has known the applicant for some time and knows him to be a very generous person.  She states that the applicant is much respected in his community and raised and supported two daughters.

9.  The applicant provided a letter of support from a friend, dated 25 October 2007.  The author stated that he has known the applicant for over 30 years and that he is an upstanding citizen.  He states that the applicant has raised two daughters and has always kept meaningful employment.  They grew up in the same neighborhood and he has never known the applicant to be in trouble with the law.

10.  Army Regulation 635-200 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 a serious offense, convictions by civil authorities, desertion or absence 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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

11.  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.  

12.  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 at the time of his discharge he was young and did not make sound decisions.  Records show that the applicant was age 17 years, 
1 month, 11 days at the time his active service began and age 19 years, 
2 months, and 27 days at the time of his discharge.  After his first Article 15, he knew there would be consequences for his actions.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline.  Therefore, there is no basis for this argument.

2.  The applicant's good post-service conduct since his discharge is acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's records show that he received three Article 15s, he was convicted by a special court-martial, and had one instance of military confinement during his enlistment.  The applicant had completed 2 years and 25 days of creditable active service with 20 days of lost time.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LE   __  ___JRS__  ___LWR_  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.




___Lester Echols_             _             
          CHAIRPERSON