IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090018402 


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.

2.  The applicant states that he was falsely accused of what was going on and did not have proper counsel to help.
 
3.  The applicant provides a Letter of Appreciation and two DD Forms 214, (Report of Separation from Active Duty) for the period ending 27 August 1973 and 4 June 1976, 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.  The applicant's record shows that he enlisted in the Regular Army (RA) on
27 August 1973.  He received training and was awarded military occupational specialty (MOS) 75E (Personnel Actions Specialist).  He reenlisted on 4 June 1976 for a period of 4 years.  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

3.  The applicant’s records show he served in Korea from on or about 25 January 1977 to on or about 11 April 1979.  His records further show he was awarded the National Defense Service Medal, Army Good Conduct Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a. on 10 April 1978, for violating a lawful general regulation from about
1 February 1978 to about 28 February 1978.  His punishment consisted of a forfeiture of $100.00 for one month and reduction to the grade of E-3 (suspended for not more than six month).  On 14 June 1978, the suspended punishment was vacated and ordered duly executed.

	b. on 31 August 1978, for failing to go to his appointed place of duty and violating a lawful general regulation.  His punishment consisted of restriction and extra duty for 14 days; and

	c. on 8 December 1978, for violating a lawful general regulation.  His punishment consisted of reduction to the grade of E-1, a forfeiture of $213.00 for two months (suspended for two months), and restriction and extra duty for 15 days.

5.  Records also show that in each of UCMJ actions he acknowledged that he was informed of and understood his right to see an attorney to aid him in deciding whether to accept the UCMJ actions.  Having seen an attorney in each instance, he elected not to demand a criminal proceeding (i.e. court-martial).

6.  The applicant's records show that he had several counseling statements and verbal reprimands during the period 12 December 1977 through 20 August 1978. He also received a traffic ticket on 25 September 1978 and again on
27 September 1978.

7.  On 16 January 1979, the applicant’s immediate commander notified the applicant that he was initiating action to discharge him from the Army under the 
provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(1), (Patterns of misconduct/Frequent incidents of discreditable nature with civil or military authorities), by reason of lack of self-discipline, demonstrated inability to adapt socially to required standards of military conduct, and failure to demonstrate promotion potential.

8.  On 30 March 1979, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army.  He elected to submit a statement in his own behalf.  He understood that his willful failure to appear before the board of officers by absenting himself without leave will constitute a waiver of his rights to a personal appearance before the board.  He also acknowledged that he may, up until the date the discharge authority orders, directs, or approves his discharge, withdraw this waiver and request that a board of officers hear his case and that he will be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge.

9.   The applicant's chain of command unanimously recommended that he be discharged.

10.  On 4 April 1979, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-33a(1), by reason of a pattern of repeated misconduct manifested by frequent involvement in incidents of a discreditable nature with military and civilian authorities and directed that he be furnished a discharge characterized as under other than honorable conditions.  On 12 April 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 5 years,
7 months, and 16 days of creditable active military service.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant had established a pattern of misconduct.  He was charged and punished for violating lawful general regulations on multiple occasions and failing to go to his appointed place of duty. He also had several counseling statements and verbal reprimands as well as traffic tickets.

2.  The applicant contends he was falsely accused of what was going on and did not have proper counsel to help him.  However, records show he had several incidents of misconduct wherein he acknowledged his right to see an attorney, and having seen an attorney, he accepted the respective Article 15s.

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions.  Based on the applicant's record of service, the reason for the applicant's discharge and the characterization of his service were both proper and equitable.

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)                                         AR20090018402



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ABCMR Record of Proceedings (cont)                                         AR20090018402



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