IN THE CASE OF:	  

		BOARD DATE:	        12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080010349 


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 a general discharge under honorable conditions.

2.  The applicant states he was involved in an altercation which was an error on his part.  He further states he now realizes this was bad judgment on his part and since he has left the service he has grown up and realizes how this impacts his life in a negative way.  He further states he is trying to obtain his benefits.

3.  The applicant provides no additional evidence or official documentation 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 initially enlisted in the Regular Army on 16 April 1979 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 31 July 1979, the applicant was assigned to Company B, 3rd Battalion, 5th Infantry, 193rd Infantry Brigade at Fort Clayton, Panama.

4.  On 17 July 1980, the applicant pled not guilty but was found guilty at a special court-martial to willful disobedience of a lawful order from a noncommissioned officer (NCO).  He pled not guilty and was found not guilty of two specifications of assault on an NCO.  His sentence consisted of a discharge from the service with a bad conduct discharge.

5.  On 20 September 1980, the applicant was assigned to the 5th Unit, 
3rd Battalion, United States Army Retraining Brigade (USARB) at Fort Riley, Kansas.

6.  On 23 September 1980, the convening authority approved the court-martial's findings but changed the sentence of discharge from the service with a Bad Conduct Discharge to the lesser punishment of confinement for six months.  

7.  United States Army Retraining Brigade, Fort Riley Special Court-Martial Order Number 687, dated 13 November 1980, suspended until 22 January 1981 the unexecuted portion of the approved sentence to confinement for six months, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

8.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 5 and 14 January 1981.  His offenses included disobeying a lawful order and failure to go at the time prescribed to his appointed place of duty.

9.  The applicant's discharge processing packet was not available for review.

10.  The following information, in effect, was taken from the Army Discharge Review Board (ADRB) Case Report summary of facts concerning the applicant's discharge.

   a.  On 15 January 1981, the applicant's commander recommended the applicant be discharged for misconduct due to his frequent incidents of a discreditable nature.

   b.  On 16 January 1981, the applicant was notified of his commander's intent to recommend discharge for misconduct.

   c.  On 20 January1981, the applicant was afforded the opportunity to consult with counsel and he requested to appear before a Board of Officers and to be represented by counsel.  The applicant declined to submit a statement in his own behalf.

   d.  On 20 April 1981, a Board of Officers was convened and the applicant and his counsel were in attendance.  The Board recommended the applicant be discharged under other than honorable conditions.

   e.  On 5 May 1981, the appropriate approval authority approved the recommendation to discharge the applicant under other than honorable conditions.

   f.  On 6 May 1981, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 11 months, and 21 days of active service that was characterized as under other than honorable conditions.  He had 
30 days time lost.

11.  The applicant applied to the ABRB to upgrade his discharge.  On 4 February 1982, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

12.  Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Included in the categories for discharge is frequent involvement in incidents of a discreditable nature with civil or military authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge under honorable conditions because he now realizes the negative impact this current discharge has on his life.  He further contends he is attempting to obtain his benefits (presumed to be his Department of Veterans Affairs benefits).

2.  Although the applicant's complete separation packet was not available it is presumed that the Army's administrative processing of the applicant for discharge is correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  A review of the applicant's record of service, which included non-judicial punishment on two occasions and a special court-martial shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

5.  The ABCMR does not correct records solely due the passage of time or for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veteran's benefits should be addressed to the Department of Veterans Affairs.

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.



      ______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)                                         AR20080010349



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ABCMR Record of Proceedings (cont)                                         AR20080010349



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