IN THE CASE OF:	   

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080012150 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect, that it has been over 30 years since his discharge.

3.  The applicant provides no 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 Army on 4 June 1974.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 36C (Telecommunications Installation Lineman).  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.

3.  The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:  on 19 February 1975, for being absent from his unit and for failing to go at the time prescribed to his appointed place of duty; on 13 November 1975, for disobeying a lawful order from a superior commissioned officer; on 3 December 1975, for wrongful appropriation of a government vehicle; on 8 April 1976, for failing to go at the time prescribed to his appointed place of duty; on 18 May 1976, for failing to go at the time prescribed to his appointed place of duty (two specifications); on
13 July 1976, for failing to go at the time prescribed to his appointed place of duty; on 7 September 1976, for failing to go at the time prescribed to his appointed place of duty (two specifications); on 16 September 1976, for failing to go at the time prescribed to his appointed place of duty (three specifications); on 17 December 1976, for failing to go at the time prescribed to his appointed place of duty (two specifications); and on 23 May 1977, for failing to go at the time prescribed to his appointed place of duty.

4.  On 16 March 1976, the applicant was convicted by a special court-martial for being disrespectful towards a superior commissioned officer and for stealing personal property from another Soldier.  He was sentenced to be reduced to the grade of private/E-1.

5.  On 17 December 1976, the applicant's commander notified the applicant of his intention to initiate separation proceedings on the applicant under chapter   13 of Army Regulation 635-200 (Personnel Separations) for misconduct because of frequent incidents of discreditable nature with civil or military authorities.

6.  On 20 December 1976, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13 for misconduct.

7.  On 17 March 1977, an elimination board convened and recommended the applicant be separated from the service with an undesirable discharge.  On an undated endorsement, the convening authority disapproved the board's 
recommendation.  A second elimination board convened on 27 May 1977 and recommended the applicant be discharged by reason of misconduct and that the applicant be furnished an Other than Honorable Conditions Discharge Certificate. On 3 June 1977, the convening authority approved the board's recommendation. On 8 June 1977, the applicant was separated with an under other than honorable conditions characterization of service.

8.  On 17 June 1977, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States).  On April 17, 1979, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.  

9.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

10.  Army Regulation 635-200, paragraph 3-7b, in effect at the time of the applicant’s separation, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

11.  Army Regulation 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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.  

2.  Record of indiscipline includes several punishments under the provisions of Article 15, UCMJ for multiple offenses.  He was also convicted by a special court martial for being disrespectful towards a superior commissioned officer and for stealing from another Soldier.

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20080012150



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ABCMR Record of Proceedings (cont)                                         AR20080012150



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