RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20080000665


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 undesirable discharge be upgraded to general.   

2.  The applicant states, in effect, that his discharge was due to an addiction and is very unjust.  After all of these years, this seemingly minor discharge is now affecting his welfare and existence.  He is 57 years of age with disabilities that have rendered him unemployed.  

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.  On 7 November 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 52A1O (Powerman). 

3.  On 7 April 1970, the applicant was assigned for duty with the 171st Infantry Brigade, in Alaska.

4.  On 28 July 1970, the applicant was discharged for the purpose of immediate reenlistment.  He had attained the rank of private, pay grade E-2 and had completed 8 months and 23 days of creditable active duty.  His characterization of service was honorable.

5.  On 29 July 1970, the applicant reenlisted in the Regular Army for 6 years.  

6.  On 5 September 1970, the applicant was promoted to private first class, pay grade E-3.
7.  On 14 September 1970, the applicant was assigned for duty with the 510th Engineer Company, in the Republic of Vietnam.

8.  On 17 April 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for willfully disobeying a lawful order from his superior noncommissioned officer.  The punishment included reduction to private, pay grade E-2 (suspended); a forfeiture of $41.00 pay per month for 1 month; and 10 days extra duty.

9.  Special Orders Number 134, United States Army Support Command, dated 14 May 1971, reduced the applicant to private, pay grade E-2 as the result of NJP.  The NJP is not available for review.

10.  Special Orders Numbers 192, United States Army Support Command, dated 11 July 1971, reduced the applicant to pay grade E-1 as the result of NJP.   The NJP is not available for review.

11.  On 6 September 1971, the applicant returned to the United States and was assigned as a patient to the Medical Holding Detachment, Kenner Army Hospital, at Fort Lee, Virginia.

12.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 17 September 1971, under the provisions of Army Regulation 635-200, Separation Program Number 246 [for the good of the service].  His service was characterized as under conditions other than honorable.  He had completed 1 year, 10 months and 
12 days of creditable active duty.

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

14.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.


DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.  

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 the aforementioned requirement.

4.  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

__MDM__  __RCH__  __JCR___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.






__   Mark D. Manning_____
          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.