BOARD DATE:	  February 4, 2010

		DOCKET NUMBER:  AR20090014642 


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 under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he was a good combat Soldier who did his time overseas, carried top ratings in the field, and he was always ready to go anywhere at any time to fight and die for his country.  He also states that he would still fight and die for his country and he regrets the trouble he had with civilian authorities.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 on 7 September 1976 for a period of 3 years, training as a short range air defense artillery crewman, and assignment to Korea.  He completed his one-station unit training (OSUT) at Fort Bliss, Texas and was transferred to Korea, where he served for 1 year and was transferred to Fort Hood, Texas.  He was advanced to the pay grade of E-3 on 
1 August 1978.

3.  On 11 October 1978, nonjudicial punishment (NJP) was imposed against him for striking a noncommissioned officer in the face with his hands.  His punishment consisted of confinement in the correctional custody facility (CCF) for a period of 14 days, reduction to the pay grade of E-1 (suspended for 90 days), and a forfeiture of pay.

4.  On 30 October 1978, NJP was imposed against the applicant for disobeying a lawful order by operating a motorcycle without eye protection and without a proper operator’s license, for the wrongful possession of marijuana, and for disobeying a lawful command from a commissioned officer.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and confinement at the CCF for 30 days.

5.  On 11 January 1979, the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited the applicant’s disciplinary record, unsatisfactory performance, poor personal hygiene, poor military bearing, and a hostile attitude towards the goals of the unit and the Army as the bases for his recommendation.  The bar to reenlistment was approved by the appropriate authority on 21 February 1979.

6.  The applicant went absent without leave (AWOL) on 7 May 1979 and remained absent until he returned to military control on 16 May 1979.  He again departed AWOL on 17 May 1979 and remained absent until 4 June 1979.  On 2 July 1979, he went AWOL and on 18 July 1979, he was arrested by civil authorities in Texas for the wrongful delivery of tetrahydrocannabinol.  On 11 September 1979, he was sentenced by civil authorities to confinement in the Texas Department of Corrections for a period of not less than 2 years and not more than 4 years.

7.  On 8 April 1980, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct due to conviction by civil authorities.  The applicant indicated that he did not intend to appeal his civil conviction and elected to have his case heard by a board of officers.

8.  On 18 July 1980, a board of officers convened at Fort Sill, Oklahoma to determine if the applicant should be discharged by reason of civil conviction.  After reviewing all of the evidence, the board determined that the applicant was undesirable for further retention in the military and recommended that he be discharged under other than honorable conditions.  The appropriate authority approved the findings and recommendation and directed that the applicant be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 22 August 1980, under the provisions of Army Regulation 635-200, chapter 14, due to misconduct – conviction by civil authorities.  He had served 2 years, 8 months and 21 days of total active service and had 297 days of lost time due to AWOL and imprisonment. 

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization of his service is appropriate given the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his misconduct and his overall undistinguished record of service.  

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)                                         AR20090014642



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014642



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1