IN THE CASE OF:	  

	BOARD DATE:	 10 July 2008

	DOCKET NUMBER:  AR20080006827 


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 his discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that it has been 30 years since his discharge and since then has never committed a felony act or any crime against the government and has lived as a tax paying American citizen.  He has worked for the government and held a temporary top secret clearance while working as an information assurance computer system engineer.  He has worked for the Center for Disease Control in Atlanta, Georgia as a computer network engineer with access to sensitive and classified documents.  He has had to work as a contractor to get the better paying computer jobs with the government.  He has over 15 years experience working in computer technology and has been offered a permanent government position if he can get his discharge upgraded.  

3.  The applicant further states, in effect, that he has been punished for 30 years for a crime he never committed.  He was never charged or prosecuted by any military or civilian authority.  

4.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214).





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.  On 1 February 1977, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He subsequently completed the Basic Airborne Course.

3.  On 22 July 1977, the applicant was assigned for duty as a light vehicle driver with the 325th Infantry Battalion, Fort Bragg, North Carolina.

4.  On 14 June 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being disrespectful in language toward a noncommissioned officer who was in the execution of his office.  The punishment included reduction to pay grade E2 (suspended), a forfeiture of $50.00 pay per month for 1 month, and 14 days restriction and extra duty.  On 27 June 1978, the suspended portion of the punishment was vacated.

5.  Item 27 (Remarks) of the applicant’s Personnel Qualification Record, Part II (DA Form 2-1) shows that on 20 September 1978, he was arrested while on authorized pass.  He was imprisoned for 2 days and released pending trial.  

6.  On 24 October 1978, the applicant appeared in the General Court of Justice, Superior Court Division, Robeson County, North Carolina, for trial.  He was charged with breaking and entering.  He pleaded guilty to misdemeanor breaking and entering and was sentenced to imprisonment for 2 years in the North Carolina Department of Correction as a committed youthful offender.  The sentenced was suspended and he was placed on probation for a period of 
2 years provided that he paid a fine of $200.00 which covered court costs and restitution for damages.
7.  On 7 November 1978, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for conviction by civil authorities.  The commander stated that the applicant had one civil conviction for breaking and entering.  The applicant’s belligerent attitude and his lack of motivation made him a totally unreliable Soldier.  The applicant had been counseled on numerous occasions with no improvement in job performance.  He was untrustworthy, unreliable, disrespectful, and undisciplined. 

8.  On 20 November 1978, the applicant accepted NJP for being absent without authority (AWOL).  The punishment included a forfeiture of $50.00 (suspended).

9.  Records show that the applicant was AWOL from 27 to 29 November 1978.  There is no available evidence showing his punishment for this misconduct.

10.  On 30 November 1978, the applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf and waived representation by counsel.

11.  On 30 November 1978, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

12.  Accordingly, on 1 December 1978, the applicant was discharged under other than honorable conditions.  He had completed 1 year, 9 months and 19 days of creditable active service.  Item 21 (Time Lost) of his DD Form 214 shows that he had 12 days of lost time due to AWOL and confinement.  

13.  On 24 September 1981, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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, 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.  The record clearly shows that the applicant was convicted by a civilian court of misdemeanor breaking and entering.
2.  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.

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

4.  The applicant’s difficulty in obtaining employment with the government is not a sufficiently mitigating reason to warrant an upgrade of his discharge.

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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080006827



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