IN THE CASE OF: BOARD DATE: 19 August 2008 DOCKET NUMBER: AR20080006263 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, in effect, upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states he performed all of his duties, but was financially strapped due to his family situation. He adds he needs benefits now. 3. The applicant provides no additional documentation with his request. 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 for 3 years on 25 January 1979. He completed One-Station Unit Training and was awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist). He was then transferred to Fort Polk, LA for his first permanent duty assignment with Headquarters and Headquarters Battery, 2nd Battalion, 21st Field Artillery. 3. The applicant's administrative separation packet is not in his records. However, the records show he was discharged with an under other than honorable conditions discharge on 20 December 1979 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct. 4. The applicant's records document several instances of misconduct. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on the following occasions: a. On or about 9 May 1979, for failing to go at the time prescribed to his appointed place of duty, to wit: formation. As punishment, he was given 14 days of extra duty and forfeiture of $80 pay per month for 1 month (suspended for 90 days). On 29 May 1979, the suspension of the forfeiture was vacated and that punishment was imposed. b. On or about 4 September 1979, for being absent without leave (AWOL) from his unit until on or about 27 September 1979. As punishment, he was given 45 days of extra duty and forfeiture of $200 pay per month for 2 months (1 month suspended for 6 months). 5. On 11 October 1979, the applicant's commander initiated a locally-imposed Bar to Reenlistment against him (DA Form 4126-R) citing two records of NJP, and two arrests by civil authorities for criminal damage, burglary, and resisting arrest. The Bar to Reenlistment was approved on 17 October 1979. 6. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be clearly inappropriate. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. DISCUSSION AND CONCLUSIONS: 1. Although the applicant's administrative discharge packet was not available for review, it is clear he demonstrated poor deportment through various acts of indiscipline. He also had an arrest record with local civil authorities. 2. Regularity is presumed in the applicant’s discharge proceedings; that they were conducted in accordance with law and regulations applicable at the time. The character of the discharge issued to the applicant is commensurate with his overall record of military service. 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) AR20080006263 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080006263 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1