IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090002227 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that it has been 28 years since he was discharged and he has been a productive member of society.  He was discharged for a single incident.  He would like to get some help from the Department of Veterans Affairs (VA).

3.  The applicant provides no supporting documentation.

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 enlisted in the Regular Army on 5 June 1979.

3.  A 14 October 1981 summary court-martial found the applicant guilty of failure to go to his appointed place of duty on six occasions during the period from 14 through 18 September 1981.  

4.  A 28 January 1982 summary court-martial found the applicant guilty of being absent without leave (AWOL) from 11 through 27 January 1982.

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows:

	a.  on 15 November 1979, for being absent from his appointed place of duty (a copy of the NJP is no longer in the file);

	b.  on 8 July 1981, for being AWOL from 0800 hours 8 June through 1300 hours on 9 June 1981, and from 0715 hours through 1300 hours on 18 June 1981;

	c.  on 7 January 1982, for being AWOL from 12 through 16 November 1981 and 20 November through 10 December 1981; and 

	d.  on 17 March 1982, for failure to obey a lawful order from a staff sergeant and for possession of marijuana.

6.  The available evidence indicates the applicant also received NJP on 
28 August 1981.  This NJP record is not available; however, the evidence shows he served 23 days in corrective custody as a result of this NJP action.

7.  The record also shows he was AWOL from 1100 hours 11 January through 0700 hours 27 January 1982.

8.  A 17 March 1982, Training Progress Note states that the applicant continued his pattern of misconduct while in the Retraining Brigade, by continuing to fail to follow rules and orders.  It was opined that he had no potential for retraining or continued service.

9.  On 23 March 1982, the applicant was notified of his command's proposed separation action under the provisions of chapter 14, Army Regulation 635-200.  

10.  After consulting with counsel, the applicant acknowledged he had been advised of his rights and the effects of an under other than honorable conditions discharge.  He waived his rights to a board of officer and to submit a statement in his own behalf.

11.  On 30 March 1982, the discharge authority approved the separation action and directed that the applicant be separated with an under other than honorable conditions discharge.

12.  The applicant was discharged on 2 April 1982.  He had completed 2 years, 
7 months, and 1 day of creditable active service and he had 87 day of lost time due to being AWOL and in confinement.  He received an under other than honorable conditions characterization of service and the narrative reason for separation is frequent involvement in incidents of a discreditable nature with civil or military authorities.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, and convictions by civil 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 appropriate for a Soldier discharged under this chapter.  

15.  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 contends that it has been 28 years since he was discharged and that he has been a productive member of society.  He also contends that he was discharged for a single incident and he would like to get some help from the VA.

2.  The available evidence show the applicant was discharged after being involved in many recorded incidents of misconduct.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service and the reason for discharge are commensurate with the applicant's overall record of military service.

3.  The applicant's contention of good post service conduct was considered; however, the applicant did not provide any mitigating factors for his misconduct or any achievement sufficient to overcome his misconduct while on active duty.

4.  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 this 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)                                         AR20090002227



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002227



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1