IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090017361 


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 an honorable or general, under honorable conditions discharge.

2.  The applicant states, in effect, that he apologizes and makes no excuses for his inappropriate conduct while serving in the Army.  He goes on to state that he was young and made some bad choices and that he was not aware of the consequences of his actions.  He continues by stating that he and his family have suffered and continues to suffer the consequences of his actions some 30 years ago and he desires the nightmare to end.  He also states that he has served his community and city well for 25 years as a servant and employee of his city government.

3.  The applicant provides a one-page letter explaining 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 enlisted in the Regular Army on 29 August 1974 for a period of 3 years, training as a unit supply specialist, and assignment to the 1st Armored Division.  He completed his training and was transferred to Germany on 11 January 1975 for assignment to a supply and transportation battalion.  He was advanced to the pay grade of E-3 on 1 May 1975.

3.  On 21 July 1975, nonjudicial punishment (NJP) was imposed against the applicant for communicating a threat to injure a superior noncommissioned officer (NCO).

4.  On 8 July 1976, NJP was imposed against him for disobeying a lawful order from a superior NCO.

5.  On 17 September 1976, he was convicted by a special court-martial of threatening his superior commissioned officer with bodily harm.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay, and reduction to the pay grade of E-1.

6.  He was transferred to the U.S. Army Retraining Brigade (USARB) at Fort Riley, KS to undergo his confinement/retraining.  While at the USARB he was hospitalized for drug abuse and he accumulated a long record of minor infractions.

7.  On 1 December 1976, the applicant’s commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  After consulting with counsel, he waived all of his rights.

8.  The appropriate authority approved the recommendation for discharge and on 14 February 1977, he was discharged under other than honorable conditions.  He had served 1 year, 11 months, and 25 days of total active service and had 171 days of lost time due to military confinement.

9.  On 26 May 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that the charges against him were insufficient to warrant the discharge he received.  The ADRB denied his request on 24 August 1978.

10.  He again applied to the ADRB on 23 March 1981 contending that he had been unjustly charged, that he was not guilty of the charges, and that the charges were racially motivated.  On 17 November 1981, the ADRB again denied his request.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for unsuitability.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions was normally considered appropriate.

12.  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.

13.  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 contentions have been noted; however, they are not sufficient to overcome his otherwise undistinguished record of service.  He was afforded numerous opportunities to rehabilitate himself; however, his misconduct continued up until the time of his discharge.  Therefore, his record of undistinguished service does not warrant an upgrade of his discharge.

2.  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.

3.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

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)                                         AR20090017361



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ABCMR Record of Proceedings (cont)                                         AR20090017361



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