IN THE CASE OF:	  

	BOARD DATE:	  4 December 2008

	DOCKET NUMBER:  AR20080015496 


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 undesirable discharge be upgraded to honorable.  The applicant also requests to personally appear before the Board.

2.  The applicant states, in effect, that during his first term of service his conduct and efficiency ratings were excellent and he had attained the rank of sergeant.  He did not receive any adverse disciplinary actions.  He was released from active duty and joined the Florida Army National Guard where he received special training in infantry and jungle warfare.  During his training in Panama, he acquired a desire to return to active duty.  In July 1973, the applicant reenlisted in the Regular Army.  He wanted an assignment to Korea, but was sent to Germany.  His previous training was on the M-60 tank, but he was given a Sheridan tank.  The unit was short on leadership and he had difficulty with his chain of command.  He turned to drinking to relieve the stress and got into trouble.  His counsel advised him to accept an administrative discharge in lieu of court-martial. He has spent the last 32 years bettering himself and his family’s lives.  He went back to school and received his high school diploma.  He enrolled in a junior college and studied business management.  He was employed by two major corporations as a branch manager.  During the last 19 years he has been busy building his own company and currently serves three counties and over 1500 customers.  He has tried to give back to the community and has not been in any trouble with the authorities.  At the age of 19 he had no idea how profound and consequential his action of signing a piece of paper would be.  He has acknowledged his mistake and his shame for over 30 years.  It has been a tremendous burden for his family and him.  He now asks the Board to take into consideration his age at the time, his limited education, his alcohol problem, and that he was not given adequate legal counsel.  He contends that had he been fairly represented, he believes that the worst that would have happened would have been a reduction in grade and a unit transfer.  He is asking to be present at the Board’s hearing.  He is sure there are questions that only he can answer.

3.  The applicant provides copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214); Report of Separation from Active Duty (DD Form 214); Honorable Discharge Certificate (NGB Form 55); two certificates of appreciation; certificate of completion of the Jungle Operations Training Course; Department of Education High School Diploma; letter of appreciation from the city of Sarasota, Florida; two certificates of appreciation from the Florida Pest Management Association; a letter from the University of Florida Institute of Food and Agricultural Sciences; and his father’s death certificate.

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.  On 16 July 1970, the applicant enlisted at 17 years of age in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11E (Armor Crewman).  He served on active duty for 1 year, 9 months, and 20 days and attained the rank of sergeant, pay grade E-5.  He was released on 5 May 1972 to join the Army National Guard.

3.  The applicant served in the Army National Guard from July 1972 to July 1973. He received an honorable discharge from the Florida Army National Guard and the Reserve of the Army on 19 July 1973.

4.  On 20 July 1973, the applicant, now 20 years of age, reenlisted in the Regular Army for 4 years beginning in the rank of sergeant, pay grade E-5, as an armor crewman.
5.  On 17 November 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order.  The punishment included reduction to pay grade E-4 (suspended) and forfeiture of $232.00 pay per month for 2 months (1 month suspended).  He did not appeal the punishment.

6.  On 18 February 1974, the applicant accepted NJP for allowing an unauthorized person access to the billets, for failing to properly prepare his vehicles for inspection, and for disobeying a lawful order.  The punishment included a forfeiture of $103.74 pay per month for 1 month and 7 days of extra duty.  His appeal of the punishment was denied.

7.  On 10 April 1974, charges were preferred under the UCMJ for violation of Article 90 for willfully disobeying a lawful order; for violation of Article 121 for stealing several magazines valued less than $500.00 from the European Exchange System; for violation of Article 128 (three specifications) for assault with a broken glass bottle upon a first lieutenant, a sergeant, and a private first class; and for violation of Article 130 for unlawfully breaking and entering the Stars and Stripes Book Store with the intent to commit a criminal offense.

8.  On 9 May 1974, additional charges were preferred under the UCMJ for violation of Article 86 for missing morning formation and for not reporting to his place of duty, and for violation of Article 90 for willfully disobeying a lawful order from a commissioned officer.

9.  On 1 July 1974, additional charges were preferred under the UCMJ for violation of Article 108 for the willful destruction of government property, and for violation of Article 134 for unlawful entry into the Rod and Gun Club and for being drunk and disorderly while in uniform in a public place.

10.  The discharge packet is missing from his military records.  However, his last DD Form 214 shows that he was administratively discharged on 9 August 1974 under the provisions of Army Regulation 600-200, chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable. He had completed a total of 2 years, 10 months, and 20 days of creditable active duty.

11.  On 11 December 1980, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 5 years for violation of Article128 for assault and for violation of Article 130 for breaking and entering; and a punitive discharge and confinement for 1 year for violation of Article 121 for stealing government property valued under $500.00.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.

2.  In the absence of evidence to the contrary, it is presumed that 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.  The applicant’s argument that he was young and not well educated is not sufficiently convincing.  His excellent performance of duty and attainment of sergeant during his first term of active duty service clearly showed that he was very capable of being a good Soldier.

4.  The applicant’s reported good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  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.

6.  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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015496



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1