RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080001103 


	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, in effect, that his under other than honorable conditions discharge be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, he would like to upgrade his discharge under the provisions of Title 10, U.S. Code, Section 1552.  He enlisted in the Army right after graduation, on 7 June 1979.  He spent two years at Fort Polk, Louisiana, where he received a couple of awards for being an outstanding Soldier in the field.  He was reassigned to the Republic of Korea at which time he had issues being overseas.  He had tried to get help from his chain of command but they did not help him, so eventually he went absent without leave.

3.  The applicant provides a personal statement dated 21 December 2007.

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 military personnel record shows he enlisted in the Regular Army on 8 June 1979.  He completed the necessary training and was awarded the military occupational specialty (MOS) 62F (Lifting and Loading Operator).

3.  Between 3 October 1980 and 16 February 1982 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for larceny and for breaking assigned duty restriction.

4.  The applicant’s personnel record shows that on 24 March 1982, a locally imposed bar to reenlistment was recommended and approved by the chain of command.  The bar was to be removed provided such action was warranted based on his future improvement in his conduct and duty performance.
5.  Between 21 December 1981 and 4 October 1982, the applicant received several counseling for his inappropriate conduct, behavior, and duty performance.

6.  On 28 October 1982, he received notification that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14-12c, for misconduct because of frequent acts of misconduct and commission of a serious offense.  

7.  He was advised of the rights available to him and the effects of his discharge. He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at hearing.  The commander also explained the applicant's waiver privileges and the procedures for withdrawal of a waiver.

8.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event an under other than honorable discharge was issued to him.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel.  He understood that if he received a discharge/character of service which is less than honorable, he could make application to the Army Discharge Review Board or the Army Board for correction of Military Records for upgrading.  However, he realized that an act of consideration by either board did not imply that his discharge would be upgraded. He further understood that he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge.  The applicant waived his rights and privileges, and did not submit a statement in his own behalf.

9.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the commander.

10.  On 30 October 1982, his commander recommended that he be discharged for misconduct for frequent acts of misconduct and commission of a serious offense.  The commander stated that he did not consider it feasible or appropriate to effect any other disposition of the applicant's case because since he had initiated proceedings to affect the applicant's discharge, the applicant had committed numerous violations, including failing to repair, absence without leave, and ration control violations.

11.  On 30 October 1982, the recommendation for separation was approved by the appropriate authority.  On 24 November 1982, the applicant was issued an under other than honorable conditions discharge for misconduct-commission of a serious offense.  He had completed a total of 3 years, 5 months, and 17 days of Net Active Service This Period.

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

13.  Army Regulation 635-200 (Personnel Separations), currently in effect, 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 serious offense, conviction by civil authorities, desertion, or absences 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.  A discharge under other than honorable conditions is normally considered appropriate. 

14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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 requests, in effect, that his under other than honorable conditions discharge be upgraded to a general or an honorable discharge.


2.  Evidence of record shows his discharge processing was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence of record provides sufficient basis for an under other than honorable conditions discharge for misconduct-commission of a serious offense. 

3.  The applicant's record shows that he had numerous incidents of misconduct.  Such a record clearly is not honorable.

4.  The applicant's contentions that he received a couple of awards for being an outstanding Soldier in the field and that he had issues being overseas, but did not get any help from his chain of command is noted.  However, his statement does not provide a sufficient basis for an upgrade of his discharge.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  __x__  __x        __   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.




      ___       x               ___
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001103



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