RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2007
      DOCKET NUMBER:  AR20070009143


      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:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 an honorable or a general discharge.

2.  The applicant states that after 18 months of exemplary service, one
incident should not have destroyed his military career.  He states that had
he had true “JAG” representation, he could have continued in his career.
He states that at the time that he entered into the Army, he was young and
ignorant.  He states that he was emotionally confused never having traveled
outside of his hometown. He goes on to state that he is proud of being an
American and grateful to live in this country where freedom, religion,
politics, and speech are prized possessions.  He states that he is not
proud of what happened in his life at that time and that it has been 25
years since his discharge.  He states that he has made one attempt to have
his discharge upgraded, which is needed so that he can have some respect
and dignity in the eyes of his children.  He asks for mercy in his plight.

3.  The applicant provides no additional documentation in support of his
application.

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 2 June 1976, he enlisted in the Army in Montgomery, Alabama, for
3 years, in the pay grade of E-1.  He successfully completed his training
as an infantryman.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 10
July 1976, for being derelict in the performance of his duties.  His
punishment consisted of a forfeiture of pay in the amount of $25.00,
restriction for 7 days, and extra duty for 7 days.
4.  The applicant was promoted to the pay grade of E-2 on 2 December 1976
and he was promoted to the pay grade of E-3 on 22 April 1977.

5.  On 13 October 1977, NJP was imposed against him for two incidents of
failure to go to his appointed place of duty.  His punishment consisted of
a forfeiture of pay in the amount of $50.00, restriction for 7 days, and
extra duty for 7 days.

6.  On 1 November 1977, the applicant was apprehended by civil authorities
and taken to jail in Clarksville, Tennessee.  He was charged with two
counts of 3rd degree burglary and one count of attempting to pass a forged
check.  He was released on bond awaiting trial on 9 December 1977.

7.  On 6 February 1978, NJP was imposed against the applicant for being
disrespectful in language toward two of his senior noncommissioned
officers.  His punishment consisted of confinement for 30 days, a reduction
to the pay grade of E-1, and a forfeiture of pay in the amount of $100.00
per month for 2 months.

8.  The applicant was detained by civil authorities on 17 March 1978,
pending adjudication of the 3rd degree burglary charge.  On 24 March 1978,
the applicant was convicted of two counts of 3rd degree burglary and one
count of attempting to pass a forged check.  He was sentenced to 3 years of
confinement (suspended), 3 years of probation for each count of burglary,
and 1 year of confinement in a local county work facility for attempting to
pass a forged check.

9.  On 10 May 1978, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 625-200,
chapter 14, for misconduct, based on his conviction by civil court.  He
acknowledged receipt of the notification and he indicated that he had no
intention of appealing his case.

10.  The appropriate authority approved the recommendation for discharge on
14 August 1978.  Accordingly, on 22 August 1978, the applicant was
discharged under other than honorable conditions, under the provisions of
Army Regulation 635-200, chapter 14, for misconduct, based on his
conviction by civil authorities.  He had completed 1 year, 8 months, and 12
days of net active service.


11.  On 26 March 1980, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.  The applicant was granted a
personal appearance by the ADRB on 15 November 1985.  After careful
consideration, that petition was denied.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contention that he was young and ignorant when he was
in the service has been noted.  However, neither of these factors, either
individually or in sum, warrant the relief requested.

4.  His contention that one incident destroyed his career has also been
noted.  However, this contention is not substantiated by the evidence of
record.  His records show that he had NJP imposed against him on three
separate occasions while he was in the Army.  He was convicted by civil
authorities as a result of his acts of misconduct and considering the
nature of his offenses, it does not appear that his discharge under other
than honorable conditions is too harsh.

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

__RTD___  __CAD__  __EEM__  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.




                                  ___Richard T. Dunbar____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009143                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070927                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000/ADMINISTRATIVE DISCHARGE       |
|2.  626                 |144.6000/MISCONDUCT                     |
|3.  627                 |144.6100/CONVICTION BY CIV AUTHORTY     |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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