IN THE CASE OF:	  

		BOARD DATE:	29 October 2009

		DOCKET NUMBER:  AR20090009381 


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 a general, under honorable conditions or an honorable discharge.

2.  The applicant states that while on duty his military conduct was good but his conduct while off duty was not.  He states that he was only 18 years old and stupid.  He also states that he joined the Army to get away from his old friends, but the short distance between his home of record in Salina, KS and Fort Riley [KS] put him back with his old crowd.  He concludes by requesting clemency because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.

3.  The applicant provides a character reference statement 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 was born on 14 October 1958, in Salina.  He enlisted in the Regular Army (RA) on 15 February 1977, in Kansas City, MO for the unit of choice option and he was assigned to the 1st Infantry Division at Fort Riley, which is 54.8 miles from Salina.

3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 8 December 1977, while he was assigned to Headquarters and Headquarters Company, 28th Infantry Regiment, Fort Riley, for absenting himself from his unit on or about 21 November 1977 and remaining so absent until 28 November 1977.  His punishment included 30 days of restriction and extra duty, a forfeiture of $175.00 pay per month for 2 months, and reduction to the rank/grade of private (PV1)/E-1.

4.  On 15 September 1977, the applicant's duty status changed from present for duty (PDY) to confined civil authorities (CCA).  The DA Form 4187 (Personnel Action) shows that the applicant was confined at the Shawnee County Jail in Topeka, KS for theft.

5.  On 16 September 1977, the applicant's duty status changed from CCA to PDY.  The DA Form 4187 shows that the applicant was released on $1,500.00 surety bond.

6.  On 27 October 1977, the applicant's duty status changed from ordinary leave to CCA.  The DA Form 4187 shows that the applicant was turned over to the Orleans Parrish Prison for felony theft and criminal damages to property and transferred to the Shawnee County Jail on 4 November 1977.

7.  On 13 November 1977, the applicant's duty status changed from CCA to PDY.  The DA Form 4187 shows that the applicant was released on $3,000.00 surety bond.

8.  On 18 November 1977, the applicant's duty status changed from PDY to AWOL.  

9.  On 28 November 1977, the applicant's duty status changed from AWOL to PDY.  


10.  On 14 December 1977, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct with an under other than honorable conditions discharge.  The reason for the proposed action was the applicant’s continued misconduct.

11.  On 11 January 1978, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and he declined to submit statements in his own behalf.

12.  On 24 January 1978, the District Court of Shawnee County, Kansas Division VIII convicted the applicant of theft and criminal damage to property.  He was sentenced to the Secretary of Corrections' custody for a period of not less than one nor more than 10 years for the offense of theft over $50.00 and for a term of not less than one nor more than 5 years for the offense of criminal damage to property.

13.  On 15 February 1978, the appropriate separation authority approved the discharge and directed that the applicant receive an Under Other Than Honorable Conditions Discharge Certificate.

14.  On 2 March 1978, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), by reason of a pattern of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge.  The DD Form 214 also shows the applicant was discharged in the rank/grade of PV1/E-1 and that he completed a total of 11 months and 4 days of total creditable active service with 44 days of time lost.

15.  The applicant provides a character reference statement in which the author indicates the applicant has an excellent work ethic and performs his assigned duties with little direct supervision.  He also demonstrated that he is reliable, trustworthy, and is putting a concerted effort towards lifestyle changes.

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

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

18.  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.

19.  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 record shows that he was 18 years of age at the time of his first disciplinary incident and that his home of record was approximately 54 miles from his duty station.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service nor is there any evidence that indicates that his proximity to his home of record and access to his old crowd contributed to his misconduct.

2.  The evidence of record shows that the applicant was discharged with an under other than honorable conditions discharge for a pattern of misconduct - frequent incidents of discreditable nature with civil or military authorities.  Records also show he had 44 days of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of 
acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general, under honorable conditions or an honorable discharge.

3.  The character reference statement submitted by the applicant regarding his post-service achievements and conduct were considered.  However, it does not provide a sufficiently mitigating basis on which to grant the applicant's requested relief.

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)                                         AR20090009381



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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