IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016738 


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 an upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

	a.  He was wrongly accused of stealing an M-16 rifle.  One night his unit had to check out their weapons to clean them.  A peer asked him if he could keep an eye on his weapon while he left to go buy everyone some dinner.  His peer was acting strangely.  When his peer returned he was speaking about a gun that someone had or was going to have.  Later that evening after he turned in his weapon, his unit found out that a rifle was missing from the armory.  His unit looked for the weapon for hours, but it was not found.  He remembered his peer was acting even stranger during this time, but it never occurred to him that his peer's weapon might be the missing weapon.

	b.  Later he was offered a position as a driver.  One day his jeep broke down while driving two officers to the range.  A week or so later he received papers notifying him that he was being demoted because of this mishap.  He tried to explain what happened with the jeep, but nobody would listen to him.

	c.  About a month later he was arrested by military police for stealing an M-16 rifle.  Apparently the missing rifle had been found under a wall locker and his former company peers said he had taken it.

	d.  If the government had proof that he stole the rifle he should have been incarcerated.  Instead he was given the option of going to Fort Leavenworth for 35 years or receiving a bad conduct discharge.  They never took him to trial.  He was treated unfairly and blamed based on hearsay.  He was not given the chance to go to court.  It was unfair to be given the choice of going to prison or receiving a bad discharge for something he didn't do.  He was told he would receive prison time if the case went to trial.

3.  The applicant provides:

* two self-authored statements
* letter from his landlord
* letter from his doctor
* his DD Form 214 (Report of Separation from Active Duty)
* a character reference letter

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 31 July 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to Company C, 1st Battalion, 35th Infantry, 2nd Brigade, 25th Infantry Division, Schofield Barracks, HI, from 7 November 1972 to 13 January 1974.  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on five separate occasions between 31 January 1972 and 11 October 1973 for:

* failing to be at his appointed place of duty (school)
* being absent without leave (AWOL) from 19 March 1973 to 22 March 1973
* disobeying an order to stand at parade rest
* disobeying an order to get a haircut
* failing to go to his appointed place of duty at the proper time on two occasions
* being derelict in his duty (allowing gas tank of Jeep to become empty)

4.  His records contain a DA Form 2800 (U.S. Army Criminal Investigation Command (CID) Report of Investigation), dated 10 December 1973.  The basis of this report was an M-16 rifle which was reported missing from the arms room of Company C, 1st Battalion, 35th Infantry, 2nd Brigade, 25th Infantry Division, Schofield Barracks, HI.  The report contained:

* nine DA Forms 2823 (Witness/Sworn Statement)
* the applicant's DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* a weapons sign-out register
* one DA Form 2823 completed by the CID Special Agent

5.  The applicant's DA Form 2823 indicated he had no knowledge of the theft; however, four individuals who made witness/sworn statements indicated:

* he admitted to stealing the weapon
* they overheard him say he had stolen the weapon
* he said he hid the weapon under a wall locker in the barracks
* he said he wanted an M-16 rifle and had planned to find some way to send the stolen weapon home
* he had been seen with the weapon after the arms room had been locked for the night
* he said he signed out one weapon and turned it in and taken one he had not signed out
* the weapon had been found in the barracks under a wall locker

6.  His records contain a Standard Form 88 (Report of Medical Examination), dated 26 December 1973, showing he was qualified for separation.

7.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain a DD Form 214 which shows he was discharged from active duty in pay grade E-1 on 13 January 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1), with a separation program designator code of 


28B (unfitness) and he was issued a character of service of under conditions other than honorable.  He was credited with completing 1 year, 5 months, and 13 days of net active service and he had 2 days of lost time due to AWOL.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  The applicant provides two self-authored statements, a letter from his landlord, a letter from his doctor, and a character reference letter in support of his case attesting to his fiscal responsibility and mental health.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, he was issued a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for unfitness.

2.  There is no evidence of record and the applicant has not provided evidence to show he was not properly and equitably discharged.  In the absence of evidence to the contrary, the discharge proceedings are presumed to have been conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the character of service appear to be both proper and equitable.

3.  His records reveal a history of AWOL and NJP under the provisions of Article 15 of the UCMJ.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  He has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.  Therefore, the applicant is not entitled to an honorable or a general 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 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)                                         AR20110016738



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ABCMR Record of Proceedings (cont)                                         AR20110016738



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