IN THE CASE OF:
BOARD DATE: 19 August 2008
DOCKET NUMBER: AR20080006263
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, upgrade of his under other than honorable conditions discharge to an honorable discharge.
2. The applicant states he performed all of his duties, but was financially strapped due to his family situation. He adds he needs benefits now.
3. The applicant provides no additional documentation with 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 applicants 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 applicants 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 Regular Army for 3 years on 25 January 1979. He completed One-Station Unit Training and was awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist). He was then transferred to Fort Polk, LA for his first permanent duty assignment with Headquarters and Headquarters Battery, 2nd Battalion, 21st Field Artillery.
3. The applicant's administrative separation packet is not in his records. However, the records show he was discharged with an under other than honorable conditions discharge on 20 December 1979 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct.
4. The applicant's records document several instances of misconduct. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on the following occasions:
a. On or about 9 May 1979, for failing to go at the time prescribed to his appointed place of duty, to wit: formation. As punishment, he was given 14 days of extra duty and forfeiture of $80 pay per month for 1 month (suspended for 90 days). On 29 May 1979, the suspension of the forfeiture was vacated and that punishment was imposed.
b. On or about 4 September 1979, for being absent without leave (AWOL) from his unit until on or about 27 September 1979. As punishment, he was given 45 days of extra duty and forfeiture of $200 pay per month for 2 months (1 month suspended for 6 months).
5. On 11 October 1979, the applicant's commander initiated a locally-imposed Bar to Reenlistment against him (DA Form 4126-R) citing two records of NJP, and two arrests by civil authorities for criminal damage, burglary, and resisting arrest. The Bar to Reenlistment was approved on 17 October 1979.
6. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldiers service is so meritorious that any other characterization would be clearly inappropriate. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions
by civil authorities, desertion or absence 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.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant's administrative discharge packet was not available for review, it is clear he demonstrated poor deportment through various acts of indiscipline. He also had an arrest record with local civil authorities.
2. Regularity is presumed in the applicants discharge proceedings; that they were conducted in accordance with law and regulations applicable at the time. The character of the discharge issued to the applicant is commensurate with his overall record of military service.
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 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
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080006263
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080006263
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090009656
The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge. However, the applicant's DD Form 214 (Report of Separation form Active Duty) shows he was discharged under other than honorable conditions on 7 September 1979 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct due to civil conviction. There is no indication in the available records which shows the applicant applied to the Army...
ARMY | BCMR | CY2009 | 20090006887
Accordingly, on 28 April 1980, the applicant was discharged. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsuitability-apathy, defective attitude or inability to expend effort constructively in accordance with chapter 13 of Army Regulation 635-200, with an Under Honorable Conditions (General) Discharge. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the...
ARMY | BCMR | CY2015 | 20150002895
His parents had been divorced most of his life at the time of the incidents that lead to his discharge. However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 7 August 1979, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-33b(1), by reason of misconduct for frequent incidents of a discreditable nature with civil or military authorities. There is no evidence the applicant applied to the Army...
ARMY | BCMR | CY2014 | 20140016669
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. On 21 August 1979, the applicant was notified by the Army and Air Force Exchange Service he had rendered a dishonored check on 10 August 1979. c. On 7 September 1979, the applicant was counseled by his noncommissioned officer in charge for sleeping in class. c. Chapter 14 (Separation for Misconduct), Section III (Conviction by Civil Court), in effect at the time, states a Soldier will be considered for discharge and his case initiated...
ARMY | BCMR | CY2009 | 20090012072
On 30 June 1983, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct. On 27 July 1983, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct and directed the applicant be furnished an under other than honorable...
ARMY | BCMR | CY2008 | 20080016219
In February 1980, the applicant's commanding officer advised him that he was being considered for elimination from the service for misconduct under the provisions of paragraph 14-33 (Misconduct frequent incidents of a discreditable nature with civil or military authorities), Army Regulation 635-200 (Enlisted Personnel). On 13 February 1980, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation...
ARMY | BCMR | CY2009 | 20090008541
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, his record contains a properly constituted DD Form 214 that shows he was discharged on 16 June 1982 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct, frequent incidents of a discreditable nature with civil or military authorities, with a character of service of under other than...
ARMY | BCMR | CY2007 | 20070004405
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 August 2007 DOCKET NUMBER: AR20070004405 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. Fields Member Mr. Randolph J. Fleming Member The Board considered the following evidence: Exhibit A - Application for correction of military records. There is no indication that the applicant applied to the Army...
ARMY | BCMR | CY2009 | 20090014642
On 11 September 1979, he was sentenced by civil authorities to confinement in the Texas Department of Corrections for a period of not less than 2 years and not more than 4 years. On 8 April 1980, the applicants commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct due to conviction by civil authorities. Accordingly, he was discharged under other than honorable conditions on 22 August 1980, under the...
ARMY | BCMR | CY2009 | 20090015384
A memorandum, dated 18 October 1979, directing the applicant's release from the custody of the Army under the provisions of chapter 14, section II, of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) by reason of fraudulent enlistment (concealment of conviction by civil court); and b. However, his records contain a memorandum, signed by the approval authority; a discharge order; and a properly-constituted DD Form 214 that show he was released from the custody of the Army...