IN THE CASE OF:	  

		BOARD DATE:	       29 July 2008

		DOCKET NUMBER:  AR20080006802 


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 that the reason for his discharge be changed from a pattern of misconduct.

2.  The applicant states, in effect, that his company commander gave him a choice of accepting a general discharge or being harassed out of the service.  He relates that he had two traffic accidents, but there was no evidence of driving under the influence.  A lieutenant colonel (LTC) held him responsible for the damage to the military vehicle, invented charges, and tried to besmirch his name. The LTC withheld information so that the American Red Cross could not inform him of his father's death.  Finally, they agreed that the applicant would be separated with a general discharge, "because he had no basis for a court-martial."  Ultimately, the LTC had "pattern of misconduct" entered on the DD Form 214 (Certificate of Release or Discharge from Active Duty) and that, "is not true at all." 

3.  The applicant provides copies of 25 pages of service record documents, including orders and certificates for promotions and awards.

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 enlisted on 23 April 1981, completed training, and was stationed in Europe as an interrogator.

3.  He was awarded the Good Conduct Medal on 22 April 1984 and promoted to sergeant, pay grade E-5, on 1 October 1984.

4.  Military police desk blotter pages show the following:  on 21 September 1986 the applicant fell asleep while driving and ran off the road; on 23 September 1986 he lost control of his vehicle, hit a guardrail and fled the scene on foot. 

5.  On 6 November 1986 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCNJ) for striking Ute W____ with his fist.  The punishment consisted of reduction to pay grade E-4 (suspended), forfeiture of $476.00 pay per month for I month, extra duty for 15 days (suspended), and a written letter of reprimand.  The applicant did not appeal.  The written reprimand indicates that he had a personal relationship with the victim.  Ute is a Germanic female name. 

6.  On 13 April 1987 the suspended reduction to pay grade E-4 was vacated due to the applicant's failure to obey a lawful order on 9 January 1997 and maltreating a female subordinate Soldier by secretly entering her room, lying on her bed, and making offensive sexual comments and gestures.

7.  The company commander initiated elimination action against the applicant due to a pattern of misconduct and recommended a general discharge.  

8.  On 14 April 1987 the applicant consulted with counsel concerning his rights.  He waived his rights except that he indicated that statements were being submitted in his own behalf.

9.  At a 16 April 1987 mental status evaluation the applicant's behavior was passive.  He was fully alert and oriented and displayed a flat mood or affect.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

10.  The intermediate commander recommended waiver of any rehabilitation requirements and separation with a general discharge. 

11.  On 1 May 1987, the appropriate authority approved the recommendation for discharge, waived any rehabilitation requirements, and directed that the applicant be issued a general discharge.

12.  Accordingly, on 15 May 1987, the applicant was separated with a general discharge.  He had completed 6 years and 23 days of creditable active service, and had no lost time.

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 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 a serious offense, convictions by civil authorities, and 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.  An under other than honorable conditions discharge is normally appropriate for a member discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The record shows three instances of misconduct which clearly constitute a pattern of misconduct.

 2.  The applicant provided no evidence to substantiate his assertion that the discharge was about a couple of vehicle accidents.  The record shows a pattern of misconduct that led to his discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.


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
      
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)                                         AR20080006802



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006802



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1