IN THE CASE OF:	  

		BOARD DATE:	       26 August 2009

		DOCKET NUMBER:  AR20090003652 


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 be upgraded to an honorable discharge.

2.  The applicant states that the type of discharge he received was not warranted due to the character and quality of service and medical condition.  He believes strongly that his past Army experiences need to be considered because he was treated unfairly. 

3.  The applicant states that he was providing a statement in addition to his application; however, no statement or additional documentation was submitted with his request.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests to the applicant and states that the issues raised on the applicant's application amply advance his contentions and substantially reflect the probative facts needed for an equitable review.  

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 records show that he enlisted in Regular Army, in pay grade E-1, on 3 January 1978, with prior enlisted service in the United States Army Reserve.  He completed basic and advanced individual training and was awarded military occupational specialty 64C, motor transport operator.  

3.  On 7 June 1978, the applicant was convicted by special court-martial of absenting himself from his unit from 10 April to 10 May 1978.  He was sentenced to a forfeiture of $100.00 pay per month for two months and 60 days extra duty and restriction.  The sentence was adjudged on 7 June 1978.

4.  On 28 June 1978, the applicant's sentence was approved and ordered executed, but the execution of that portion adjudging restriction for 60 days was suspended for 90 days, at which time, unless sooner vacated, it would be remitted without further action.

5.  On 4 August 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on 14 and 21 July 1978.  His punishment included a forfeiture of $75.00 pay for one month (suspended for 90 days) and 14 days extra duty.  The applicant elected to appeal the punishment and his appeal was denied on 18 August 1978.

6.  On 15 November 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for sleeping on sentinel duty on 6 November 1978.  His punishment included a forfeiture of $100.00 pay for one month.  He did not appeal the punishment.

7.  On 12 December 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for wrongful possession of some marijuana on 28 November 1978.  His punishment included a forfeiture of $209.00 pay per month for two months and 30 days extra duty.  He did not appeal the punishment.



8.  On 19 December 1978, the applicant's company commander initiated a bar to reenlistment against the applicant.  He stated that the applicant had exhibited a marked inability to perform satisfactorily as a Soldier without constant supervision. The applicant did not appear to have the potential to improve his duty performance in the future and would not be a productive Soldier.  The company commander also stated that the best interest of the Army would be served by barring the applicant from further active military duty.  

9.  On 10 January 1979, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty on 1 January 1979.  His punishment was 30 days extra duty.  He did not appeal the punishment.

10.  On 19 January 1979, the applicant acknowledged the proposed bar to reenlistment and elected not to submit a statement in his own behalf.  

11.  On 5 February 1979, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for wrongful possession of some marijuana on 31 January 1979.  His punishment was 30 days confinement.  He did not appeal the punishment.

12.  The applicant's bar to reenlistment was approved on 15 February 1979.

13.  On 12 June 1979, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to properly secure his wall locker on 23 May 1979.  His punishment included a forfeiture of $50.00 pay and 14 days extra duty.  He did not appeal the punishment.

14.  On 2 August 1979, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty on 23 July 1979 and willfully disobeying a lawful order on 30 July 1979.  His punishment included a forfeiture of $100.00 pay and 30 days extra duty and restriction.  He did not appeal the punishment.

15.  On 5 September 1979, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for breaking restriction on or about 2 and 3 September 1979.  His punishment included a forfeiture of $200.00 pay and 21 days extra duty and restriction.  He did not appeal the punishment.

16.  On 24 September 1979, the applicant's company commander advised the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct.  The 

company commander advised the applicant that he was recommending his elimination because his continuous and blatant disregard for law and regulations indicated that he had no desire to adjust to the military and would make no effort to improve himself.  

17.  On 24 September 1979, the applicant acknowledged receipt of the company commander's notification.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged the effects of issuance of a discharge under other than honorable conditions.  

18.  On 2 October 1979, the applicant's company commander recommended the applicant be separated for misconduct.  The company commander stated that further rehabilitation was not feasible because the applicant was unconcerned with following laws and regulations.  He showed no desire to improve his performance on record, even with the help provided by the chain of command.  The company commander also requested a waiver of rehabilitative transfer.

19.  On 19 October 1979, the applicant's battalion commander recommended approval of the discharge for misconduct and waiver of rehabilitative transfer.

20.  On 31 October 1979, the separation authority approved the recommendation for the applicant's discharge and waiver of rehabilitative transfer and directed that he be issued an under other than honorable conditions discharge.

21.  The applicant was separated from active duty, in pay grade E-1, on 7 November 1979, under the provisions of Army Regulation 635-200, paragraph 14-33b(2), for misconduct-frequent incidents of a discreditable nature, with an under other than honorable conditions discharge.  He was credited with completing 1 year, 9 months, and 5 days of net active service.  He also had lost time from 10 April through 9 May 1978.

22.  On 2 April 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

23.  Army Regulation 635-200 (Personnel Separations - Enlisted Separation), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33b of the regulation established the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave  Action would be taken to separate a member for misconduct when it was clearly 
established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

24.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

25.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

2.  The applicant's contention that the type of discharge he received was not warranted was considered.  The evidence shows he was convicted by special court-martial and punished under Article 15 several times for acts of misconduct. The applicant was advised by his company commander that he was recommending his elimination from the service because his continuous and blatant disregard for law and regulations indicated that he had no desire to adjust to the military and would make no effort to improve himself.  The evidence shows the applicant failed to conduct himself in a suitable manner for military personnel and there is no evidence that suggests he attempted to comply with the established rules and regulations.  

3.  The applicant has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  There is no error or injustice in his record.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting an upgrade of his discharge to an honorable or general characterization of service.  

4.  It appears the applicant was properly discharged and his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  In order to justify correction of a military record, the applicant must show, 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.

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)                                         AR20090003652





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ABCMR Record of Proceedings (cont)                                         AR20090003652



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