IN THE CASE OF:
BOARD DATE: 22 July 2008
DOCKET NUMBER: AR20080006939
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 Under Other Than Honorable Conditions discharge be upgraded to honorable.
2. The applicant states, in effect, that during the time that he was in the Army he was young and not very mature and was easily influenced into making stupid mistakes. He regrets his mistakes and the long term affect they have had on him. Thirty years have elapsed and he is now a better person.
3. The applicant provides no additional evidence.
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. On 19 January 1976, the applicant enlisted in the Regular Army for 3 years. He successfully completed his initial training and was awarded military occupational specialty 11E (Armor Crewman). He attained the rank of private first class on 1 October 1976.
3. On 19 October 1976, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to report to his place of duty. The punishment included reduction to pay grade E-2 (suspended), a forfeiture of $50.00 pay per month for 1 month, and 7 days restriction and extra duty.
4. On 24 January 1977, the applicant received NJP for failure to report to his place of duty and for disobeying a lawful order from a commissioned officer. The punishment included a forfeiture of $97.00 pay per month for 1 month, and
14 days extra duty.
5. On 2 June 1977, the applicant received NJP for failure to report to his place of duty on three separate occasions. The punishment included reduction to pay grade E-2 and 7 days restriction and extra duty.
6. On 14 June 1977, the applicant received NJP for breaking restriction. The punishment included reduction to pay grade E-1 and a forfeiture of $87.00 pay per month for 1 month.
7. The administrative discharge packet is missing from his military records. However, his Report of Separation from Active Duty (DD Form 214) shows that he was administratively discharged on 12 August 1977, under the provisions of Army Regulation 600-200, Chapter 13. His service was characterized as under other than honorable conditions. He had completed 1 year, 6 months and
24 days of creditable active duty.
8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.
9. Army Regulation 635-200 set forth the policy and prescribed the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5(a)1 provided for the separation for unfitness, which included, frequent incidents of a discreditable nature sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant accepted four NJP's during a period of 8 months, which clearly were frequent incidents of a discreditable nature.
2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.
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 the aforementioned requirement.
4. 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) AR20080006939
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