RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010847 


	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

Ms. Anita McKim-Spilker 

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. John T. Meixell

Member

Mr. Qawiy A. Sabree

Member

	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 his under other than honorable conditions discharge be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, that his discharge would be automatically upgraded and he now requests the proper documentation in order to get his medical, dental, and loan benefits.  He also would like to know about his educational assistance program and his "SGLI" coverage. 

3.  The applicant did not provide additional documentary evidence in support of this application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 March 1981, the date of his discharge from the Army.  The application submitted in this case is dated 23 July 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 record shows that he enlisted in the Regular Army on 
6 August 1979 for a period of three years.  He was trained in, awarded, and served in military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank the applicant attained was private/E-2.

4.  The applicant's service personnel record contains no documented acts of valor, achievement, or service warranting special recognition.

5.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  21 April 1980, for absence without leave (AWOL) from 
15-17 April 1980; 8 August 1980, for failing to go at the time prescribed to formation; 8 September 1980, for failing to go at the time prescribed to formation; and on 10 February 1981, for failing to go at the time prescribed to work.
6.  On 22 December 1980, a special court-martial convicted the applicant of assault.  The resultant sentence included confinement at hard labor for 3 months and a forfeiture of $165.00 pay per month for three months.  On 23 January 1981, the unexecuted portion of the applicant's sentence of confinement at hard labor was suspended until 21 May 1981. 

7.  The applicant's record does not contain the specific facts and circumstances surrounding the discharge process.  His record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was prepared at the time of his discharge.

8.  The DD form 214 shows that on 3 March 1981, the applicant was separated with an under other than honorable conditions discharge by reason of misconduct-frequent incidents of a discreditable nature with authorities, under the provisions of chapter 14, Army Regulation 635-200.  He had completed a total of 1 year, 6 months, and 1 day of active military service and had 27 days of lost time due to AWOL and military confinement.  

9.  Army Regulation 635-200 (Enlisted Separations) 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 and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

10.  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 (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.

11.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's personnel record shows that he accepted nonjudicial punishment on four occasions and was convicted by a special court-martial.   

2.  The available record shows the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200, by reason of misconduct-frequent involvement in incidents of a discreditable nature with authorities.  The facts and circumstances surrounding the discharge process are not contained in the applicant's official record. 

3.  The applicant's available record shows many offenses which were punishable under the UCMJ with a punitive discharge.  The applicant would have been required to consult with defense counsel.  He also would have been required to sign a statement indicating that he had been informed that he could receive an under other than honorable conditions discharge and the ramifications of receiving such a discharge.  

4.  Based on the infractions of discipline shown in the record, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This type of misconduct would render his service unsatisfactory.  In the absence of evidence to the contrary, regularity is presumed in the discharge process.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.   

6.  The applicant's issues regarding his educational assistance program and "SGLI coverage" should be directed to the Department of Veterans Affairs (DVA), who administers veterans benefit programs.  

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 March 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
2 March 1984.  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

__mdm___  __jtm___  __qas___  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 D. Manning
______________________
          CHAIRPERSON

INDEX

CASE ID
AR20060010847
SUFFIX

RECON

DATE BOARDED
20070222
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19810303
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.6400
2.

3.

4.

5.

6.