IN THE CASE OF:	

		BOARD DATE:	1 October 2009    

		DOCKET NUMBER:  AR20090007812 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, his discharge in 1977 was unjust.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Report of Separation from Active Duty).

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 (RA) on 17 September 1975.  Upon completion of training, he was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).
3.  On 20 September 1976, the applicant was tried by a special court-martial.  He was found guilty of the charge and specification of committing an assault upon a Soldier by cutting him on the right arm with a dangerous weapon.  The approved sentence provided for reduction to pay grade E-1, confinement at hard labor for two months, and forfeiture of $150.00 pay per month for two months.

4.  The applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave from on or about 
1 August 1977 to on or about 3 August 1977.  His punishment consisted of reduction to pay grade E-1 (suspended for 90 days), forfeiture of $87.00 pay (suspended for 90 days), and seven days duty at the Correctional Custody Facility.

5.  On 4 August 1977, charges of larceny pending against the applicant were withdrawn without prejudice to the government.

6.  On 4 August 1977, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Misconduct), based on frequent incidents of a discreditable nature with civil or military authorities.  The applicant was advised of his rights and instructed that he must consult with counsel.

7.  On 5 August 1977, the applicant acknowledged receipt of the notification of separation action under the provisions of Army Regulation 635-200, chapter 13. 

   a.  He acknowledged that military legal counsel for consultation was available to assist him.

   b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge is issued to him.  He was also advised that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and States laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   c.  The applicant waived consideration of his case by a board of officers and personal appearance before a board of officers.  He also elected not to submit statements in his own behalf and waived representation by military counsel.  

   d.  The applicant and his legal counsel each placed their signature on the document.
8.  On 8 August 1977, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, chapter 13.  The reasons for the recommended action were the applicant's demonstrated misconduct of frequently being late for formations and duty, disrespect to the noncommissioned officers appointed over him, failure to report for work, and resistance to all attempts to rehabilitate him.  The brigade commander also recommended approval of the separation action.

9.  On 5 October 1977, the separation authority waived further counseling and rehabilitative requirements and approved the applicant's separation.  The commander also directed the applicant be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  The applicant's DD Form 214 shows he entered active duty this period on
17 September 1975 and he was discharged under other than honorable conditions on 16 November 1977 under the provisions of Army Regulation
635-200, paragraph 13-5a.  At the time he had completed 2 years and 11 days of net active service.  Item 21 (Time Lost) shows he had 50 days of time lost under Title 10, U.S. Code, section 972, from 20 September through 8 November 1976.

11.  The applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge.  On 27 August 1980, the ADRB, after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable and voted not to change the characterization of his service.  The applicant was notified of the ADRB's decision on 16 October 1980.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a of the regulation in effect at the time provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 his under other than honorable conditions discharge should be upgraded to an honorable discharge because his discharge was unjust.

2.  Records confirm the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5a, based on frequent incidents of a discreditable nature with civil or military authorities was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the type of discharge and character of service directed were appropriate. 

3.  The applicant's military service records show he was convicted by a special court-martial, he was frequently late for formations and duty, he was disrespectful to the noncommissioned officers appointed over him, he failed to report for work, and he had 50 days of time lost during the period of service under review.  Thus, the applicant's record of service clearly shows that his overall quality of service was not satisfactory and it did not meet the standards of acceptable conduct and performance of duty for Army personnel.  More specifically, it was not sufficiently meritorious to warrant an honorable discharge.  Therefore, the applicant is not entitled to an honorable discharge.

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.  Therefore, in view of all 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)                                         AR20090007812



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ABCMR Record of Proceedings (cont)                                         AR20090007812



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