IN THE CASE OF:	  

		BOARD DATE:	  	  12 March 2009

		DOCKET NUMBER:  AR20080016707 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he received an Article 15 (nonjudicial punishment) for getting into a confrontation with his father-in-law [also a Soldier at the time] which resulted in them pressing charges against each other.  He continues to state, in effect, that since this occurred prior to his ETS (expiration term of service) he was discharged with a general discharge rather than an honorable discharge like his first enlistment.  He also states, in effect, that this resulted in him not seeing his daughter for 22 years but he has since developed a nice relationship with her.  He further states, in effect, that he would like to reenter the military so he can continue to serve his country and retire.  He concludes by stating, in effect, that he has been working, serving God, and being a family man.      

3.  The applicant provides an undated, self-authored statement; and the reverse side of three DD Forms 370 (Request for 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 record shows that he enlisted in the Regular Army and entered active duty on 17 May 1979.  He was trained in, awarded, and served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman), and the highest rank he attained while serving on active duty was specialist four (SP4)/
E-4.  

3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 23 May 1980 for wrongfully having in his possession 10.01 grams, more or less of marijuana on or about 2 April 1980. 
His punishment included a reduction to the rank of private (PV1)/E-1, a forfeiture of $116.00 pay for a period of 1 month, and 7 days confinement in the Correctional Custody Facility (CCF).

4.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 2 December 1980 for willfully disobeying a lawful order from a noncommissioned officer on or about 
11 November 1980.  His punishment included a reduction to the rank of PV1 (suspended until 1 March 1981) and 7 days confinement in the CCF.

5.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 29 April 1984 for failing to go at the time prescribed to his appointed place of duty on 4 and 6 April 1984.  His punishment included a reduction to the rank of private first class (PFC)/E-3, forfeiture of $185.00 pay per month for 1 month, and restriction and extra duty for 14 days.

6.  In support of his application, the applicant provided the following documents:

   a.  A three-page self-authored statement, which was previously introduced and summarized in the applicant’s statement.

   
   
   b.  A DD Form 370 by M--- D. R---, Pastor, dated 22 June 2008.  She states the applicant became a member of the church in 1995.  They became good friends and started working together for a year.  She also knows his family and have had a good relationship.  She believes he would represent our country really good.
     
   c.  A DD Form 370 by R—G-----, Police Chief, dated 23 June 2008.  He states that in the time the applicant worked for the city he was always dependable, conducted himself professionally, and had a good working knowledge of his job. He takes instruction and follows those instructions to completion.
   
   d.  A DD Form 370 by P------- L------, City of George West Judge, dated         23 June 2008.  She states she has known the applicant both personally and professionally.  In both capacities he has been reliable and an asset.  He always follows through on duties assigned to him.  He is a personable individual who gets along well with others.  She would highly recommend him for employment.  

7.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review by the Board.  However, the record of evidence does include a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was discharged on 10 September 1984, in pay grade E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 
14 -12b, by reason of misconduct (pattern of misconduct), with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 5 years, 3 months, and 23 days of creditable active service and he had 1 day of lost time.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  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.

10.  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.

11.  Army Regulation 635-200, paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be without merit.

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant‘s discharge.

3.  The evidence of record shows that the applicant was discharged with an under other than honorable conditions discharge by reason of misconduct - pattern of misconduct and 1 day of lost time.  Therefore, his service does not warrant an upgrade of his discharge to either a general or an honorable discharge.

4.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is no evidence of record and the applicant has not provided any evidence that overcomes this presumption.  Therefore, there is no basis for granting the applicant's requested relief.







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)                                         AR20080016707



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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