RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           December 4, 2003                  
	DOCKET NUMBER:   AR2003091484

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Kenneth W. Lapin		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that her discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant provides no argument or evidence in support of her request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 9 December 1977.  The application submitted in this case is dated 5 May 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born on 21 October 1952 and enlisted in Atlanta, Georgia, on 11 August 1976, for a period of 4 years and training as a personnel management specialist.  She was transferred to Fort McClellan, Alabama, to undergo her basic training.

4.  On 13 October 1976, nonjudicial punishment (NJP) was imposed against the applicant for being disrespectful towards a superior noncommissioned officer and for disobeying a lawful order of a commissioned officer.  Her punishment consisted of a forfeiture of pay and restriction.

5.  She completed her basic training and was transferred to Fort Benjamin Harrison, Indiana, to complete her advanced individual training (AIT).  She completed her AIT and was transferred to Fort Sill, Oklahoma, on 7 December 1976.

6.  On 22 April 1977, NJP was imposed against her for failure to go to her place of duty.  Her punishment consisted of a reduction to the pay grade of E-1 (suspended for 90 days), a forfeiture of pay (suspended for 90 days) and extra duty.  On 2 May 1977, the applicant's commander vacated the suspended punishments.

7.  On 3 May 1977, NJP was imposed against her for disobeying a lawful order from a superior noncommissioned officer.  Her punishment consisted of a forfeiture of pay and extra duty.

8.  On 14 July 1977, NJP was imposed against her for failure to go to her place of duty and for disobeying a lawful order from a superior noncommissioned officer.  Her punishment consisted of a forfeiture of pay and extra duty.

9.  The applicant received a rehabilitative transfer on Fort Sill, effective 29 August 1977.

10.  On 19 October 1977, NJP was imposed against her for failure to go to her place of duty.  Her punishment consisted of a forfeiture of pay and extra duty.

11.  On 28 October 1977, NJP was imposed against her for disobeying a lawful order to perform her assigned duties.  Her punishment consisted of a forfeiture of pay, extra duty and restriction.

12.  The applicant's commander notified her on 28 October 1977, that he was recommending that she be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for misconduct based on her involvement in frequent incidents of a discreditable nature with military authorities. He cited as the basis for his recommendation, the applicant's disregard for authority, failure to report for duty, her disciplinary record and her failure to respond to counseling and rehabilitation attempts by the chain of command. 

13.  After consulting with counsel, the applicant waived all of her rights and declined to submit a statement in her own behalf.

14.  The appropriate authority (a major general) approved the recommendation for discharge on 7 December 1977 and directed that she be discharged under other than honorable conditions.

15.  Accordingly, she was discharged under other than honorable conditions on 9 December 1977, under the provisions of Army Regulation 635-200, chapter 13, for misconduct, due to frequent involvement in incidents of a discreditable nature with military authorities.  She had served 1 year, 3 months and 9 days of total active service.

16.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge on 13 July 1983.  She contended at that time that her discharge was inequitable because it was based on several immature judgments over a 16-month period.  After reviewing all of the evidence in her case, the ADRB determined that her discharge properly characterized her service and voted unanimously to deny her request on 28 December 1983.

17.  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 unfitness.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

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

3.  The applicant's misconduct began as early as her basic training and continued up until the time of her discharge.  Therefore, the board finds that her record of undistinguished service does not warrant an upgrade of her discharge.

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.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 28 December 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 December 1986.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KL___  __AR___  __WTM__      DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		Walter T. Morrison
		 			    CHAIRPERSON

INDEX

CASE ID	AR2003091484	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	1977/12/09	
DISCHARGE AUTHORITY	AR635-200/CH13 . . . . .  	
DISCHARGE REASON	MISCONDUCT FI	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.144.6000	626/A60.00	
2.		
3.		
4.		
5.		
6.