IN THE CASE OF:	

		BOARD DATE:	09 March 2010  

		DOCKET NUMBER:  AR20090014529 


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 discharge be upgraded and all of his qualification badges be added to his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states he was treated unfairly and made an example of at the U.S. Army Retraining Brigade.  He had to do more than everyone else and lasted almost a month before he could not take any more and requested discharge.  Although his rifle qualification badge is on his DD Form 214, his award of the Air Assault Badge and the pistol qualification badge are not.  He is currently participating in an alcohol abuse program.

3.  The applicant provides copies of his DD Form 214 and personal statements in support of his contentions.

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 3 January 1977, completed training, and was awarded military occupational specialty 16P (Chaparral Crewman).

3.  The applicant was absent without leave (AWOL) from 6 through 10 December 1977.  Upon return to military control he was placed in pretrial confinement.

4.  On 30 December 1977 a special court-martial found him guilty of 5 days of AWOL and communicating a threat to do bodily injury.

5.  The applicant was AWOL again from 7 through 16 February 1978.  Upon return to military control he was placed in pretrial confinement.

6.  On 24 February 1978 a special court-martial found him guilty of being AWOL for 10 days and breaking restriction.  His sentence included confinement for 2 months.

7.  The available record does not contain any documentation related to his separation processing.

8.  The applicant's DD Form 214 shows he was discharged on 20 April 1978 under other than honorable conditions for a pattern of misconduct in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 14-33b.  He had 60 days of lost time.  His awards are listed as the "Rifle (M-16 Badge)" and "Hand Grenade Badge," but no level of qualification is recorded.

9.  His DA Form 2-1 (Personnel Qualification Record) provides the following:

	a.  the applicant did not complete basic airborne training,

	b.  he was permanently disqualified from airborne training due to a lack of motivation and self-imposed withdrawal, and

	c.  the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.

10.  The applicant's record does not contain any orders for any awards, decorations, or badges.

11.  The applicant's record does not contain any indication of participation in any air assault training programs.

12.  Army Regulation 600-8-22 (Military Awards), in pertinent part, sets forth requirements for award of the Air Assault Badge.  Award of the Air Assault Badge requires that an individual must have satisfactorily completed an air assault training course according to the U.S. Army Training and Doctrine Command standardized Air Assault Core Program of Instruction or have completed the standard Air Assault Course while assigned or attached to the 101st Airborne Division (Air Assault) after 1 April 1974.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  As then in effect, it provided:

	a.  Chapter 3 outlined the criteria for characterization of service.  Paragraph 3-7a stated an honorable discharge was a separation with honor.  The honorable characterization of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) stated, "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b stated a general discharge was a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c stated an under other than honorable conditions discharge was issued when there were one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	b.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline).   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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was treated unfairly and made an example of at the U.S. Army Retraining Brigade.  He had to do more than everyone else and lasted almost a month before he could not take any more and requested discharge.  His award of the Air Assault Badge and the pistol qualification badge are not on his DD Form 214.  He is currently participating in an alcohol abuse program.

2.  The applicant has not provided and the record does not contain any documentation showing completion of any air assault training; therefore award of the Air Assault Badge is not warranted.

3.  There is no documentation that the applicant qualified at any level with a pistol.

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

5.  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)                                         AR20090014529



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ABCMR Record of Proceedings (cont)                                         AR20090014529



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