IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000705 


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 a general discharge.

2.  The applicant states that when he originally considered joining the Army to get out of his neighborhood environment he was given literature by a sergeant that he later learned he should not have been allowed to see.  He goes on to state that he was accosted by a sheriff’s deputy in Manhatten, KS when he attempted to ask him a question and he was not attempting to resist arrest.  He further states that he reported his badge number.  He also states that he tried to help a roommate by stating that he was involved in a locker incident; however, under questioning he later admitted that he was simply trying to help cover up the destruction of the locker and received nonjudicial punishment (NJP).

3.  The applicant provides no additional documents with 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 5 March 1979 for a period of 3 years, training as wheel vehicle mechanic, and assignment to Fort Hood, TX.  He completed his one-station unit training at Fort Jackson, SC and he received orders transferring him to Fort Hood with a reporting date of 7 August 1979.

3.  The applicant did not report as ordered and he was reported as being absent without leave (AWOL) from 7 August 1979 until he was returned to military control on 1 September 1979.  As a result, court-martial charges were preferred against him.

4.  On 30 October 1979, he was convicted by a summary court-martial of being AWOL from 7 August to 1 September 1979.  He was sentenced to confinement at hard labor for 14 days and a reduction to the pay grade of E-1.  He was transferred to the U.S. Army Retraining Brigade at Fort Riley, KS to serve his sentence to confinement.

5.  On 7 December 1979, NJP was imposed against him for failing to obey a lawful order by a superior noncommissioned officer (NCO) to secure his footgear after duty hours.

6.  On 12 December 1979, NJP was imposed against him for disobeying a lawful order from a superior NCO to return from pass by 2300 hours.

7.  On 20 December 1979, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-33, for misconduct based on his frequent involvement in incidents of a discreditable nature with civil/military authorities and his failure to respond to numerous counseling sessions and the rehabilitation program.

8.  After consulting with defense counsel, the applicant elected to appear before a board of officers and further elected not to submit a statement in his own behalf.


9.  A board of officers convened on 22 January 1980 with the applicant and his counsel present.  After hearing testimony from the applicant and his counsel, the board recommended the applicant's discharge under other than honorable conditions for misconduct.

10.  The appropriate authority approved the recommendation on 28 January 1980 and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct based on his frequent involvement in incidents of a discreditable nature with civil/military authorities.

11.  Accordingly, he was discharged under other than honorable conditions on 30 January 1980.  He had served 9 months and 21 days of total active service and he had 35 days of time lost due to AWOL and confinement.

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

13.  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 include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

2.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge when compared to the repeated nature of his misconduct and his otherwise undistinguished record of service during such a short period.

3.  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)                                         AR20100000705



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)