BOARD DATE: 25 October 2011
DOCKET NUMBER: AR20110008284
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 discharge under other than honorable conditions be upgraded.
2. The applicant states:
* He has turned his life over to God and his disciples
* He is trying to do right by all men and God
* He is not the same man as before
* A change has taken place in his life
3. The applicant provides no documentary evidence.
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 applicants 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 applicants 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 22 May 1972 for a period of
3 years. He completed his training and was awarded military occupational specialty 36K (field wireman). On 29 December 1974, he was honorably discharged for immediate reenlistment. He reenlisted on 30 December 1974 for a period of 3 years.
3. On 29 January 1975, nonjudicial punishment (NJP) was imposed against the applicant for being derelict in the performance of his duties.
4. On 4 October 1976, NJP was imposed against the applicant for using disrespectful language toward a sergeant.
5. On 27 October 1976, he was convicted by a summary court-martial of possessing marijuana. He was sentenced to forfeit $249.00 for 1 month and to be reduced to E-1. On 29 October 1976, the convening authority approved the sentence.
6. A bar to reenlistment was imposed against the applicant on 13 December 1976.
7. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, his DD Form 214 (Report of Separation from Active Duty) for the period ending 25 January 1977 shows he was discharged under other than honorable conditions on 25 January 1977 under the provisions of Army Regulation 635-200, chapter 13, paragraph
13-5a(1) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He had served a total of 4 years, 8 months, and 3 days of total active service.
8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.
10. 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.
11. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
In the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request to upgrade his discharge.
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.
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