IN THE CASE OF:	

		BOARD DATE:	  9 September 2008

		DOCKET NUMBER: AR20080009928 


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, that his discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, the judge at his court-martial stated that his case should never have been elevated to a court-martial and should have been resolved at the company level.  The applicant states that upon completion of his confinement, he was sent back to the same unit and commander who had previously shown bias against him.  He states his commander told him it was only a matter of time before he was sent back to prison where he belonged.  The applicant states that before his court-martial he had been accepted in the Warrant Officer Flight Program and had no previous problems.  He further states this was an isolated incident.

3.  The applicant provides a letter of reference 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 military personnel record shows he enlisted in the Regular Army on 16 November 1977 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 76Y (Unit Supply Specialist).  On 30 June 1980, he reenlisted for a period of 6 years.  On 26 March 1981, he was awarded the primary MOS 11B (Light Weapons Infantryman).  

3.  On 12 January 1981, after serving 27 months in Germany, the applicant was assigned to C Company, 2nd Battalion, 19th Infantry at Fort Stewart, Georgia.

4.  On 22 September 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit from 17 - 18 September 1981.

5.  On 24 November 1981, the applicant received a Letter of Reprimand from his commander due to the applicant having been apprehended by civil authorities for driving under the influence of alcohol.

6.  On 18 January 1982, the applicant was notified by the U.S. Army Military Personnel Center (now known as Human Resources Command), Alexandria, Virginia, that his application for Warrant Officer Flight Training was not favorably considered.

7.  On 6 October 1982, the applicant was evaluated by a captain of the Medical Corps.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

8.  On 15 October 1982, the applicant pleads guilty and was found guilty by a special court-martial of stealing a 35mm sub-caliber practice Light Anti-Tank Weapon (LAW).  His sentence consisted of 75 days confinement, forfeiture of $50 pay per month for 3 months, and reduction to private/pay grade E-1.

9.  The service of that portion of the sentence to confinement for 75 days was deferred on 15 October 1982 and was rescinded on 21 October 1982.  The convening authority approved the sentence on 29 October 1982.

10.  On 17 December 1982, the applicant's commander notified the applicant that the commander was initiating action to discharge him under the provisions of Chapter 13 of Army Regulation 635-200 (Personnel Separations) for unsatisfactory performance.  

11.  The commander's letter advised the applicant of his right consult with a consulting counsel, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of these rights at any time prior to the date the discharge authority directs or approves his discharge.  

12.  On 17 December 1982, the applicant, after having been advised by counsel, submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200 for unsuitability.  The applicant did not indicate that he was submitting statements in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

13.  On 21 December 1982, the applicant received a local bar to reenlistment.

14.  The applicant's commander recommended the applicant be eliminated from the U.S. Army under the provisions of Chapter 13 of Army Regulation 635-200 and recommended the characterization of his service be under honorable conditions.

15.  The appropriate authority approved the applicant's discharge for unsatisfactory performance and directed the applicant to receive a General Discharge Certificate.

16.  On 21 January 1983, the applicant was discharged by reason of unsatisfactory performance.  He had served 4 years, 11 months, and 9 days of active service that was characterized as under honorable conditions.  He had 
57 days time lost.

17.  The letter, dated 19 May 2008, submitted by the applicant was written by a retired Marine now working with incarcerated veterans.  She provided a history of her organization and the programs they provide for incarcerated veterans.  She indicated the applicant is currently an inmate in the Texas Department of Criminal Justice and asks for all and any compassion and kindness be shown the applicant in his request.
18.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

19.  Paragraph 13-2a(3) of Chapter 13 of Army Regulation 635-200, in effect at the time, in pertinent part, stated that commanders will separate a member for unsatisfactory performance when it is clearly established that the seriousness of the circumstances is such that the member's retention would have an adverse impact on military discipline, good order, and morale.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under honorable conditions should be upgraded to an honorable discharge.  He contends the judge stated his case should have been resolved at the company level.  He further contends his commander told him it was only a matter of time before he was sent back to prison.  However, he provides no evidence to support these contentions.  Therefore, they can not be considered as mitigating factors in the determination of this case.

2.  The applicant contends that before his court-martial he had been accepted in the Warrant Officer Flight Program.  However, a letter, dated 18 January 1982, notified him he was not favorably considered for the program.  Therefore, the evidence does not support his contention.

3.  The reference letter submitted by the applicant did not provide any evidence in support of the applicant and only pointed out that he is currently incarcerated (as of the date of the letter).

4.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  The ABCMR does not upgrade discharges based solely on the passage of time.  Therefore, in view of the above, there is insufficient basis to upgrade the applicant's discharge.

6.  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 that 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)                                         AR20080009928





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ABCMR Record of Proceedings (cont)                                         AR20080009928



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