IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011995 


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 to honorable. 

2.  The applicant states that he was a patriotic and loyal Soldier to his company and country.  He followed orders and was proud to be in the U. S. Army.  He is not proud of an incident that occurred during his time in the service.  He and some friends were out drinking.  They got into a fight.  He apologizes for shaming his family and country. 

3.  The applicant provides no additional documentation 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.  On 5 January 1977, the applicant enlisted in the United States Army Reserve for 6 years.  He entered active duty for training (ADT) on 11 February 1977, completed his initial training and was awarded military occupational specialty (MOS) 63B (Power Generator and Wheel Vehicle Mechanic).  He was released from ADT on 28 May 1977.

3.  Effective 18 August 1978, the applicant was involuntarily ordered to active duty for a period of 19 months and 28 days.  He was directed to report to Fort Knox, Kentucky.

4.  On 24 August 1978, the applicant departed Fort Knox for duty at Fort Hood, Texas.

5.  On 6 September 1978, the applicant was assigned as a power generator mechanic with the Service Battery, 1st Battalion, 21st Field Artillery Regiment, located at Fort Hood.

6.  On 31 May 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go at the prescribed time to his appointed place of duty (three separate incidents).  The punishment included reduction to pay grade E2 (suspended), a forfeiture of $109.00 pay per month for 1 month and 14 days restriction and extra duty.

7.  On 20 June 1979, the applicant was convicted by Special Court-Martial of assault on another Soldier by striking him with a pool cue.  His sentence consisted of reduction to pay grade E-1, confinement at hard labor for 1 month and forfeiture of $279.00 pay per month for 1 month.  He served 23 days in confinement.

8.  On 5 July 1979, the applicant was assigned to the 5th Unit, 3rd Battalion, 
U. S. Army Retraining Brigade, located at Fort Riley, Kansas.

9.  On 21 August 1979, the applicant accepted NJP for failure to obey a lawful order to not leave the unit area without permission.  The punishment included 
7 days restriction and extra duty.

10.  On 24 August 1979, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to frequent incidents of a discreditable nature.  The commander cited the applicant's court-martial, two NJP's and his reassignment for correctional training and treatment.  The commander stated that the applicant's actions since arrival precluded accomplishment of the objective.  The applicant's behavior, attitude and ability demonstrated little desire for returning to duty.  He had received counseling by members of the leadership team and members of the professional staff agencies, but failed to react constructively to the rehabilitation program. 

11.  On 28 August 1979, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

12.  On 30 August 1979, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

13.  Accordingly, on 31 August 1979, the applicant was discharged under other than honorable conditions.  He had completed 2 years, 7 months and 3 days of creditable active duty service, and had 23 days of lost time due to confinement.

14.  On 21 November 1995, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

15.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence 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.

16.  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.

17.  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 he was a patriotic and loyal Soldier to his company and country.  He apologizes for shaming his family and country by getting into a fight and wants his discharge upgraded to honorable.

2.  The record shows five offenses in 4 months as well as an inadequate response to remedial training.  Clearly, this is frequent incidents of a discreditable nature.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  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.  This misconduct renders his service unsatisfactory. Therefore, he is not entitled to either a general or an honorable discharge.

6.  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.

7.  In view of the above, the applicant's request should be denied.  

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)                                         AR20090011995





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ABCMR Record of Proceedings (cont)                                         AR20090011995



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