IN THE CASE OF:	  

		BOARD DATE:	       18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009118 


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 an upgrade of his discharge.   

2.  The applicant states, in effect, that his case was blown out of proportion at the time and he now simply asks for an upgrade in order to secure gainful employment.  

3.  The applicant did not provide any additional 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 records show he enlisted in the Regular Army for a period of 3 years on 9 May 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunition Storage Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Parachutist Badge, and the National Defense Service Medal.  

4.  On 24 March 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving his duties at fire watch without authority, with intent to abandon the same, on or about 19 March 1975.  His punishment consisted of 14 days of restriction and reduction to private (PV2)/E-2.

5.  On 18 June 1975, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant, citing his record of misconduct.  The applicant was furnished a copy of the bar, but elected not submit a statement on his own behalf.  His battalion commander subsequently approved the bar to reenlistment.

6.  The applicant's service records reveal a disciplinary history of NJP under the provisions of Article 15 of the UCMJ as follows:

	a.  on 27 June 1975, for leaving his duties at fire watch without authority, with intent to abandon the same, on or about 14 May 1975, and failing to go at the prescribed time to his appointed place of duty, on or about 11 June 1975.   His punishment consisted of a forfeiture of $100.00 pay for 2 months, reduction to private (PVT)/E-1, 30 days of restriction, and 30 days of extra duty; and 

	b.  on 23 October 1975, for failing to go at the prescribed time to his appointed place of duty, on or about 17 October 1975, and of willfully disobeying a lawful order, on or about 22 October 1975.   

7.  On 2 June 1976, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct.  The specific basis of the recommendation was the applicant’s behavior caused numerous problems within the unit; he continuously displayed contempt for all authority, an inability to complete the simplest tasks, and his continuous tardiness caused a disruptive force within the unit.

8.  On 3 June 1976, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a Board of Officers and a personal appearance before a Board of Officers.  

9.  On 3 June 1976 (erroneously shown as 2 June 1976), the applicant’s immediate commander initiated separation action against him in accordance with paragraph 13-5a of AR 635-200 for misconduct, frequent incidents of a discreditable nature with military authorities.  The immediate commander further remarked that the applicant was constantly late for duty, disrespectful to others, and was unable to follow simple directives.

10.  On 7 July 1976, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  The intermediate commander further remarked that the applicant could not meet minimum standards of military service and lacked the maturity to concentrate his efforts towards mission accomplishment.

11.  On 8 July 1976, the applicant’s senior commander recommended approval of the applicant’s discharge.  The senior commander further remarked that the applicant did not appear to be qualified for further military service.

12.  On 3 August 1976, by memorandum, the applicant was notified of the time, date, location, composition, uniform, and purpose of the administrative board.  He was also notified of his right to consult with counsel and present witnesses.  He subsequently acknowledged receipt of the notification to appear before the administrative board and his rights to present evidence or witnesses during the board, on the same date.    

13.  The board convened at Fort Bragg, North Carolina, at 3:00 pm on 16 August 1976, to determine whether the applicant should be administratively separated from the Army for misconduct.  The applicant and his counsel were present during the board and were afforded the full opportunity to cross-examine adverse witnesses, to present evidence in the applicant’s behalf and to testify in person or submit a statement.  The board adjourned at 6:35 pm on 16 August 1976.

14.  The board reached a unanimous decision and found a definite pattern of misconduct had been established and that further rehabilitation was not possible and recommended to the approving authority that the applicant be discharged from the Army with a general discharge under honorable conditions.   The board president authenticated the report of proceedings as complete and accurate.  The separation authority approved the findings and recommendations and further directed immediate separation.

15.  On 13 September 1976, the separation authority ordered the applicant discharged from the Army under the provisions of chapter 13-5b(1) of AR       635-200 for misconduct, and directed he be furnished a General Discharge Certificate.   Accordingly, the applicant was discharged on 6 October 1976.  The DD Form 214 he was issued at the time shows he was discharged in accordance with chapter 13-5b(1) of AR 635-200 with a character of service of under honorable conditions.  This form further shows he completed 2 years, 4 months, and 28 days of creditable military service. 

16.  On 19 June 1981, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

17.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

18.  AR 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

CONSIDERATION OF EVIDENCE:

1.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant had a history of misconduct including three instances of Article 15 and a bar to reenlistment.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080009118



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009118



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1