RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080000730 


	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:


P. M.

Chairperson

J. H.

Member

K. J.

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 (UD), characterized as under other than honorable conditions (UOTHC), be changed.

2.  The applicant states, in effect, that it was 30 years ago that he made a mistake, although not a serious one.  He thinks he has earned the opportunity to have it corrected.  He loves God and his country and this is for his own personal benefit.  He states that it will not affect anyone or thing except himself.

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

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 record shows he enlisted in the Regular Army on 28 November 
1973.  The applicant successfully completed basic combat training at Fort Polk, Louisiana, and advanced individual training at Fort Knox, Kentucky.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 45N, Tank Turret Mechanic.  He was promoted to pay grade    E-3 on 1 December 1974.

3.  The applicant continued to serve until he was honorably discharged on 16 November 1975 for immediate reenlistment.  He reenlisted on 17 November 1975.

4.  The applicant was convicted by a special court-martial on 3 August 1976, of failing to obey a lawful order, on six occasions.  His sentence consisted of confinement at hard labor for 4 months and a forfeiture of pay for 4 months.  

5.  Item 21, of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II), shows that he was AWOL from 19 January 1976 to 21 January 1976 and was confined from 19 May 1976 to 20 May 1976 and from 3 August 1976 to 9 November 1976.  

6.  All of the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available record.  However, the applicant's record contains a copy of his DD Form 214 which shows that on 10 November 1976, he was discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness.  He was furnished an UD in the pay grade of E-1.  He had completed a total of 2 years, 7 months, and 29 days of creditable service and he had 104 days of lost time.

7.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 
13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, an undesirable discharge was issued by the separation authority.

9.  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.

10.  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, 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.



DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review.

3.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service.

4.  The applicant's contentions were considered; however, they do not support a change of his UD. 

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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

__PM____  __KSJ__  ___JH___  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.



      _____P. H. M, Jr.______
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080000730



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