IN THE CASE OF:	

		BOARD DATE:	  01 April 2010

		DOCKET NUMBER:  AR20090015114 


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 his undesirable discharge (UD) be upgraded to a general discharge (GD) under honorable conditions. 

2.  The applicant states he is requesting this action in pursuit of his personal knowledge and gratification in knowing he once served his country.  He indicates he was going through turbulent times with his family and regrets his actions.  

3.  The applicant claims since leaving the service, he realizes the Army made him a better person by improving his self-esteem and personal hygiene.  He further indicates the Army made him the man he turned out to be.  He has been free of trouble that could impact him and his family.  He is older and wiser and understands life is what you make of it and the legacy you leave your children is important.

4.  The applicant provides the following documents:

* Request pertaining to military records
* Commendation Letter, dated 12 January 2000
* Employer Letters of Recommendation
* Principles of Space Cushion-No Accident Driving Completion Certificate
* Safety Training Certificate 


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's record shows he enlisted in the Regular Army on 22 March 1974.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and private first class/E-3 is the highest rank he attained while serving on active duty.  

3.  The record documents no acts of valor or significant achievement.  It does confirm a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on six separate occasions between 14 June 1974 and 
22 September 1976.  He was convicted by a special court-martial (SPCM) for violating Article 128 of the UCMJ (assault) on 1 October 1976.

4.  On 20 December 1975, after being advised that action was initiated to separate him for misconduct, the applicant consulted with legal counsel.  He was advised of the basis for the contemplated action to separate him for misconduct under the provisions of chapter 13, Army Regulation 635-200, its effects, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant completed a rights statement and elected not to submit statements in his own behalf, he also made the following requests:

	a.  consideration of his case by a board of officers;

	b.  personal appearance before a board of officers; and

	c.  representation by counsel.




5.  On 4 January 1977, a board of officers met with the applicant and his counsel to consider the applicant's separation action.  After reviewing the evidence and testimony, the board unanimously recommended the applicant be eliminated from the military for misconduct and that he receive a UD.  

6.  On 10 January 1977, the separation authority approved the findings and recommendations of the board of officers and directed the applicant be discharged from the military for misconduct and that he be issued a UD.  On 
11 January 1977, the applicant was discharged accordingly.  

7.  The DD Form 214 issued to the applicant upon discharge shows he was separated under the provisions of Chapter 13, Army Regulation 635-200, by reason of misconduct (frequent incidents of a discreditable nature with civil or military authorities). 

8.  The applicant provides letters of commendation and recommendation from his employers that attest to his good work ethic and character.  He also provides training certificates showing he completed two courses in driver safety.

9.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

10.  Army Regulation 635-200 (Personnel Separations), sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for misconduct.  Members separated for misconduct normally received an UD.  A GD or honorable discharge (HD) could be issued by the separation authority if warranted by the member's overall record of service.  An HD is a separation with honor and is appropriate when the quality of service generally has met the standards of acceptable conduct and performance of duty.  A GD is issued when the military record is satisfactory but not sufficiently meritorious to warrant an HD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded, based on his post service conduct and work history and due to the family problems he was experiencing at the time, has been carefully considered.  However, the factors presented are not sufficiently mitigating to support granting the requested relief.  

2.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
3.  The record confirms a board of officers fully reviewed the applicant's case at a hearing, with him and his counsel, and determined he should be discharged from military service and issued a UD based on his extensive record of misconduct.  His post service conduct and work history are noteworthy.  However, this alone does not support an upgrade of his discharge.  

4.  The applicant's record documents no acts of valor or significant achievement but does reveal a significant disciplinary history that includes his acceptance of NJP on six separate occasions and an SPCM conviction.  Therefore, his undistinguished record of service did not support the issuance of a GD at the time of discharge and it does not support an upgrade now.  

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)                                         AR20090015114



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ABCMR Record of Proceedings (cont)                                         AR20090015114



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