RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080002481 


	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 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant states, in effect, he was told that at the end of his sentence, he would be retrained and returned to his unit and would be afforded the opportunity to improve his discharge.  However, at the end of his retraining, he was discharged and never given the opportunity to make up for his mistake.   

3.  The applicant provides no documentary evidence 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.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 26 May 1972.  He was trained in and awarded military occupational specialty (MOS) 11E (Armor Crewman), and specialist four (SP4) is the highest rank he attained while serving on active duty.  

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  His record does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions and three separate court-martial convictions.  

4.  On 29 November 1972, a Summary Court-Martial (SCM) found the applicant guilty of violating Article 86 of the UCMJ by being absent without leave (AWOL) from 12 October through 5 November 1972.  His sentence was a forfeiture of $50.00 and 20 days of extra duty.  

5.  On 6 March 1973, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 14 December 1972 through 14 January 1973.  His sentence was hard labor without confinement for 60 days and a forfeiture of $100.00 per month for three months.  

6.  On 13 June 1974, the applicant accepted NJP for two specifications of being absent from his appointment place of duty without authority; and on 3 October 1974, he accepted NJP for being AWOL from 22 through 26 August 1974.  

7.  On 25 April 1975, a SPCM found the applicant guilty of violating Article 92, Article 128 and Article 134 of the UCMJ as indicated:  Article 92 -being derelict in the performance of his duties; Article 128 - assault of another Soldier; and Article 134 - wrongfully communicating a threat to another Soldier.  The resultant sentence was confinement for four months, forfeiture of $229.00 per month for four months, and reduction to private/E-1 (PV1).  

8.  The applicant's Official Military Personnel File (OMPF) is void of a complete separation packet containing all the facts and circumstances surrounding his separation processing.  The OMPF does contain the unit commander's initial separation recommendation and a properly constituted separation document 
(DD form 214) that identifies the authority and reason for his discharge.  

9.  On 27 April 1975, the unit commander of the Processing Unit, Retraining Brigade, Fort Riley, Kansas, recommended the applicant be discharged under the provisions of chapter 13, Army Regulation 635-200, by reason of unfitness (Frequent Incidents of a Discreditable Nature).  The unit commander cited the applicant disciplinary history as the basis for taking the action.  

10.  On 3 July 1975, the applicant was undesirably discharged after completing 
2 years, 9 months, and 3 days of creditable active military service and accruing 125 days of time lost due to AWOL and confinement.  The DD Form 214 he was issued confirms he was discharged under the provisions of Chapter 13, Army Regulation 635-200, by reason of Unfitness (Frequent Involvement of a Discreditable Nature with Authorities).  

11.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  


12.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for Unsuitability and Unfitness.  Members separated for Unfitness normally received an UD.  A GD or HD could be issued by the separation authority if warranted by the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was told that he would be rehabilitated and given a chance to receive a GD was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record does not include a complete separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of Chapter 13, Army Regulation 635-200, by reason of Unfitness.  Lacking evidence to the contrary, it is concluded his separation processing was accomplished in accordance with the applicable regulation; that all requirements of law and regulation were met; and that the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's record reveals no acts of valor, significant achievement or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on two separate occasions and three court-martial convictions.  This undistinguished record of service did not support the issue of a GD or HD by the separation authority at the time of the applicant's discharge, and does not support an upgrade at this time. 

5.  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

___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)                                         AR20080002481



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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