RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080000060 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 be upgraded.

2.  The applicant states he was told that after 6 months his discharge would be automatically upgraded to honorable.  He was sent a letter in 1981 that the action had been completed but it has not been.

3.  The applicant provides no supporting 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 enlisted in the Georgia Army National Guard (GAARNG) and served on initial active duty for training (IADT) from 13 March 1977 through 10 June 1977.

3.  After a break in service, the applicant enlisted in the Regular Army (RA) on
29 May 1979 with a follow-on reenlistment on 28 November 1979.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 12 July 1979, for being drunk on duty;

	b.  on 1 April 1980, for absenting himself from his appointed place of duty and failure to pay a just debt; and 

	c.  on 15 June 1980, for failure to go to his appointed place of duty and without authority absenting himself from his place of duty.

5.  On 24 April 1980 the applicant received a written reprimand for failure to pay a just debt.  Associated with this letter of reprimand are seven letters to his command in reference to his failure to pay just debts.

6.  On 30 July 1980, the applicant's command initiated separation action under Army Regulation 635-200, paragraph 14-33a(3), by reason of misconduct based on frequent incidents of a discreditable nature with civil or military authorities and an established pattern of failure to pay just debts.

7.  On 14 August 1980 the applicant acknowledged the separation action.  He waived his right to a hearing before a board of officers, to appear before such a board, to submit a statement on his own behalf, and to be represented by counsel.  

8.  The applicant's Battalion commander requested the requirement for a rehabilitative transfer be waived.  He indicated that the applicant was not a responsible person as documented by not only the NJP actions, but also his continued failure to pay his debts and by issuing personal checks on a closed account.

9.  The discharge authority approved both the waiver of rehabilitative transfer and the separation action.  He directed that the applicant be discharged with a characterization of service of under other than honorable conditions (UOTHC).

10.  The applicant was discharged on 10 November 1980 with an UOTHC for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He had 9 months and 6 days of creditable service.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  As in effect at that time, paragraph 14-33b was for a pattern of misconduct including frequent incidents of a discreditable nature with civil or military authorities, a pattern of shirking, an established pattern of failure to pay just debts, or failure to adequately support dependents. 

13.  Action was to 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.
DISCUSSION AND CONCLUSIONS:

1.  The record contains no indication of any action being undertaken in 1981 to afford the applicant an upgrade of his discharge.

2.  There is not now nor has there ever been a provision that would automatically upgrade a Soldier's discharge. 

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TSK __  ___JLP__  __DWT__  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.




      _______TSK___________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080000060



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508