RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060009390 


	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.



	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, in effect, that his discharge under other than honorable conditions be upgraded to a general discharge or an honorable discharge.

2.  The applicant essentially states that when he was processing out of the Army, his discharge was changed from honorable to dishonorable for no reason. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 September 1978, the date of his discharge from the Regular Army.  The application submitted in this case is dated 25 June 2006.

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 limitations 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’s records show that he enlisted in the Regular Army on 9 June 1976.  He completed basic and advanced individual training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  He was then assigned to Fort Bliss, Texas in October 1976 for his initial permanent duty assignment.

4.  Between 14 January 1977 and 14 July 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on seven occasions.  His offensives included three instances of being absent without leave (AWOL), dereliction in the performance of duties, and four instances of failure to go at the time prescribed to his appointed place of duty.  Collectively, his punishment consisted of two reductions in rank, forfeiture of $465.00, extra duty for 84 days, and restriction for 49 days.

5.  On 14 August 1978, the applicant’s commander notified him of his intention to initiate action to discharge him from the United States Army under the provisions of Army Regulation 635-200 (Enlisted Personnel), paragraph 14-33b(1)(2), for misconduct.  He was advised of his rights, which included representation by legal counsel, and was instructed to acknowledge receipt.

6.  On 17 August 1978, the applicant consulted legal counsel and was advised of the basis of the contemplated action to separate him for misconduct.  Subsequent to counseling, the applicant acknowledged receipt, and completed his election of rights by waiving consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement of rebuttal in his own behalf.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  

7.  On or about 24 August 1978, the proper authority approved the applicant’s discharge, and directed that he be issued a DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions).  He also directed that the applicant be reduced in rank from private/pay grade E-2 to private/pay grade E-1.  

8.  On 8 September 1978, the applicant was discharged accordingly.  The applicant’s DD Form 214 (Report of Separation From Active Duty) shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 
14-33b(1).  The Separation Program Designator (SPD) of “JKA” indicated that the reason for his discharge was, “Pattern of Misconduct.”

9.  On 20 December 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

10.  Although the applicant essentially stated that while he was processing out of the Army, his discharge was changed from honorable to dishonorable for no reason, there is no evidence in his military records, and the applicant failed to provide any evidence which shows that his discharge was changed, or that he was given a dishonorable discharge.




11.  Army Regulation 635-200 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 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.  Further, it also states that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

12.  Army Regulation 635-200, paragraph 3-7a, provides, in pertinent part, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200, paragraph 3-7b, provides, in pertinent part, 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 Soldier’s separation specifically allows such characterization.

14.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general or an honorable discharge.

2.  The applicant’s contention that his discharge was changed from honorable to dishonorable for no reason was rejected.  There is no evidence in his military records, and the applicant failed to provide any evidence which shows that his discharge was changed, or that he was given a dishonorable discharge.

3.  Evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ on seven occasions for multiple violations of the UCMJ.  He was reduced in rank three times, forfeited $465.00, ordered to perform extra duty for 84 days, and placed on restriction for 49 days.  Given the high number of instances of misconduct, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  Evidence of record also confirms that his discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  In order to justify correction of a military 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.

6.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 20 December 1982.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 19 December 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 timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MM___  __JM____  __QS ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




______Mark Manning________
          CHAIRPERSON




INDEX

CASE ID
AR20060009390
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19780908
DISCHARGE AUTHORITY
AR 635-200, PARA 14-33B(1) 
DISCHARGE REASON
PATTERN OF MISCONDUCT
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6700.0000
2.

3.

4.

5.

6.