RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            22 JANUARY 2004                  
	DOCKET NUMBER:   AR2003091559

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ronald J. Weaver		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.  In effect, the applicant requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that his MOS (Military Occupational Specialty) was not that of a receiving clerk, but as a 36K10, 05M, and/or a 31V (communications).  He also requests, in effect, that his                 DD Form 214 be corrected to delete the remark that he was discharged because of an established pattern of shirking.

2.  The applicant states that it was unjust that his DD Form 214 reflects that he was shirking his duties.  Prior to his coming to that post [Fort Stewart], he was the only PFC (private first class) in his PLC (Primary Leadership Course), and was being considered for promotion and for assignment as a squad leader.  He made some mistakes while on active duty, but he also did some good.

3.  The applicant provided no evidence to support his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 26 May 1982.  The application submitted in this case is dated 19 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 enlisted in the Army for three years on 25 October 1977 in the pay grade of E-3 and was trained at Fort Gordon, Georgia as a tactical wire operations specialist, MOS 36K10.  His Personnel Qualification Record shows that he was awarded that MOS on 9 February 1978 and that he served in that MOS throughout his Army career.  There is no evidence that he was awarded or served in any other MOS.

4.  On 20 January 1978 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for making a false official statement to military police, with intent to deceive, that he had been robbed at gunpoint.  In February 1978 the applicant was assigned to an artillery battery in Korea.  On 12 June 1978 the applicant received nonjudicial punishment for AWOL (absent without leave).  On 4 August 1978 he received nonjudicial punishment for failing to have in his possession an Armed Forces Liberty Pass while being absent from his unit in a non-duty status.  On 5 September 1978 the applicant received nonjudicial punishment for possessing, with intent to deceive, an altered Armed Forces Liberty Pass.   

5.  The applicant returned to the United States and was assigned to Fort Sill, Oklahoma.  In November 1979 he completed the PLC, marginally achieving course standards, with a demonstrated performance below that of his peers.  He was promoted to pay grade E-4 on 18 December 1979.  On 19 June 1980 he reenlisted in the Army for three years.  In October 1980 he was assigned to Fort Stewart, Georgia.      

6.  On 23 January 1981 the applicant received nonjudical punishment for AWOL  for the period 19 January 1981 until his return to duty on 23 January 1981.  On 22 April 1981 he received nonjudicial punishment for possession of marijuana.  On 25 September 1981 he received nonjudicial punishment for AWOL for the period 25 August 1981 until his return to duty on 15 September 1981.  On           6 November 1981 he received nonjudicial punishment for failure to go to his place of duty on two occasions.

7.  On 24 December 1981 he was barred from reenlisting.  On 21 January 1982 the applicant received nonjudicial punishment for AWOL for the period 4 January 1982 until his return to duty on 7 January 1982.

8.  On 14 January 1982 the applicant's commanding officer notified the applicant that he was recommending that he be discharged from the Army under the provisions of Army Regulation 635-200, section V, for acts of misconduct, to include alcohol or other drug offenses, and patterns of misconduct – an established pattern of shirking.  The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He declined to submit a statement in his own behalf, but requested consideration of his case by a board of officers.  He stated that he understood the nature and consequences of an other than honorable conditions discharge that he might receive.   

9.  The applicant's commanding officer recommended to the separation authority that the applicant be eliminated from the Army for misconduct.  He stated that the applicant elected to present his case before an administrative discharge board.  He stated that the applicant had been counseled on six occasions, and included copies of the counseling forms with his recommendation.  Those forms show that the applicant missed formation on three occasions, that he failed a room inspection on two occasions, and that he was insubordinate and disrespectful to a noncommissioned officer on one occasion.  

10.  On 2 April 1982 a board of officers convened to determine whether the applicant should be eliminated from the Army for misconduct.  The applicant was present at the proceedings and was represented by counsel.  Witnesses were called and the applicant testified in his own behalf.  The board determined that the applicant was undesirable for further retention because of an established pattern of shirking, and that his rehabilitation was not deemed possible.  The board recommended that he be discharged and issued an Honorable Discharge Certificate. 

11.  On 18 May 1982 the separation authority approved the board's recommendation and directed that he be discharged for misconduct, an established pattern of shirking, and alcohol or other drug offenses.  He directed that the applicant be furnished an Honorable Discharge Certificate.  He was discharged on 18 May 1982.  The reasons for his discharge as indicated on his DD Form 214 are misconduct-alcohol or other drug offenses and an established pattern of shirking.  The applicant's primary specialty of his DD Form 214 is shown as 36K10, tactical wire operations specialist.    

12.  Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include acts of misconduct to include alcohol or other drug offenses, and patterns of misconduct, including an established pattern of shirking.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  On receiving a recommendation for separation for misconduct, the commander exercising general court-martial authority may convene a board of officers to determine whether the member should be separated for misconduct.  The board will recommend that a member be separated for misconduct, indicating the type of discharge certificate to be furnished, separated because of unsuitability, or retained in the service.  The completed report of proceedings will be forwarded to the separation authority for approval.  The convening authority cannot authorize the issuance of a discharge certificate of less favorable character than recommended by the board.  

 DISCUSSION AND CONCLUSIONS:

1.  The applicant's inference that his DD Form 214 reflects his MOS as that of a receiving clerk is puzzling.  His MOS and specialty, 36K10, tactical wire operations specialty, in which he served throughout his military service, are properly recorded on his DD Form 214.  There is no error.     

2.  The narrative reason for his discharge, " … an established pattern of shirking," is appropriate.  The evidence shows that subsequent to his reenlistment in June 1980, the applicant was AWOL on three occasions, failed to go to his place of duty on two occasions, and missed formation on three occasions.  A pattern of shirking his duties and responsibilities is clearly and unequivocally established.  There is no error or injustice in this notation on his DD Form 214.    

3.  Records show the applicant should have discovered the error or injustice now under consideration on 26 May 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 May 1985.  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

__JHL __  __AAO __  ___RJW _  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.  

		____ See Attached______
		        CHAIRPERSON

INDEX

CASE ID	AR2003091559	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040122	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.05	
2.	110.02	
3.		
4.		
5.		
6.