RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011816 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

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

2.  The applicant states, in effect, that his military records are in error and he requests upgrade of his discharge in order to qualify for medical benefits as a U.S. Army veteran.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 September 1977, the date of his discharge.  The application submitted in this case is dated 11 August 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 military service records show that he enlisted in the U.S. Army Reserve on 31 December 1976 and entered active duty in the Regular Army for a period of 3 years on 11 January 1977.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 76Y (Unit/Organization Supply Specialist).  The highest rank the applicant attained while serving on active duty was private/pay grade E-1.  At the time of his discharge he had completed 8 months and 12 days net active service.

4.  The applicant’s military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 June 1977.  This document shows that non-judicial punishment was imposed against the applicant for on or about 8 June 1977 and 14 June 1977, he did wrongfully appropriate U.S. Government Indicia envelopes, of a value of about twenty-six cents, the property of the U.S. Government.  His punishment consisted of forfeiture of $26.00, 7 days extra duty, and 14 days restriction (suspended for 1 month).

5.  On 22 June 1977, the unit commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation
635-200, paragraph 5-37.  The reasons for the proposed separation action were repeated lateness and absenteeism, an apathetic attitude towards the Army, inability to adjust to military service, and repeated incidents of misconduct and misuse of government property.  The unit commander recommended the applicant receive a general discharge under honorable conditions, which the applicant declined to accept indicating that he wanted to Soldier and be an asset to the Army.

6.  The applicant’s military service records contain a copy of a DA Form 2627, dated 1 July 1977.  This document shows that non-judicial punishment was imposed against the applicant for, on or about 29 June 1977, wrongfully using provoking words towards the noncommissioned officer (NCO) serving as the unit's first sergeant and willfully disobeying the lawful order of a superior NCO. His punishment consisted of forfeiture of $80.00, 14 days extra duty, and 14 days restriction.

7.  The applicant’s military service records contain a copy of Headquarters and Service Battery, 1st Battalion, 42nd Field Artillery (Korea), letter, dated 6 July 1977, subject:  Letter of Admonition.  This document shows, in pertinent part, in an effort to correct any conflicts which might have occurred in the past, the applicant's battery commander transferred him to the S-4 Property Book Office so that he would have a better opportunity to perform in his MOS.  This document also shows the transfer was to be considered rehabilitative in nature.

8.  The applicant’s military service records contain a copy of a DA Form 2627, dated 30 August 1977.  This document shows that non-judicial punishment was imposed against the applicant for, on or about 25 July 1977, wrongfully having in his possession an unauthorized pass, disorderly conduct towards the military police in performance of their duty, and using disrespectful language toward a superior NCO.  His punishment consisted of forfeiture of $50.00 per month for
2 months and 45 days extra duty.

9.  On 3 August 1977, the unit commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation
635-200, chapter 13, paragraph 13-5a, for misconduct based on frequent acts of a discreditable nature with military authorities.  His recommendation for the applicant's separation included six records of counseling, a letter of admonition, a record of the applicant's rehabilitative transfer, and disciplinary action taken under Article 15, UCMJ, on three occasions.  The applicant was also advised of his rights.

10.  On 9 August 1977, the applicant consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, and of the rights available to him. He requested consideration of his case by a board of officers, personal appearance before a board of officers, and did not submit statements in his own behalf.  The applicant indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  In addition, the applicant was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

11.  The unit commander subsequently recommended the applicant's separation from service and indicated that the applicant's conduct had been such that he should be discharged under less than honorable conditions.

12.  On 23 August 1977, the battalion commander reviewed the proposed discharge action, including the applicant's statement, and recommended approval of the separation action indicating the applicant had consistently challenged the authority and directives of his superiors in a manner that was totally unacceptable in the U.S. Army, had rejected extensive efforts at rehabilitation, and showed no indication of ever performing satisfactorily.

13.  On 24 August 1977, the applicant again consulted with legal counsel.  On that date, having again been advised of the basis for the contemplated separation action and its effects, and of the rights available to him, the applicant knowingly changed his separation elections.  In pertinent part, he waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and did not submit statements in his own behalf.  The applicant indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  In addition, the applicant was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant acknowledged with both his initials and signature the changes in the election of his options and that he understood the contents of the statement.  On 30 August 1977, the Command Staff Judge Advocate received the applicant's waiver form and forwarded it to the Commander, 4th U.S. Army Missile Command (Korea), on 31 August 1977.

14.  On 1 September 1977, the colonel serving as Commander, 4th U.S. Army Missile Command (Korea), reviewed the proposed discharge action, including the applicant's revised election of options and statement, and recommended approval of the separation action.  The commander indicated that the applicant had served under two different commanders and in two different duty positions in the command, had failed to demonstrate any rehabilitative potential, and continued to engage in acts of misconduct.  On this basis, the commander recommended waiver of further counseling and rehabilitative transfers and discharge of the applicant.

15.  The applicant’s military service records contain a copy of a DA Form 2627, dated 1 September 1977.  This document shows that non-judicial punishment was imposed against the applicant for, on or about 20 August 1977, willfully disobeying a lawful order issued by a commissioned officer.  His punishment consisted of 30 days extra duty and 30 days restriction.

16.  On 8 September 1977, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for misconduct based on frequent acts of a discreditable nature with military authorities and directed that the applicant be furnished a discharge under other than honorable conditions.  Accordingly, the applicant was discharged on 22 September 1977.

17.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

18.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant on the date of his separation confirms that the applicant was issued a discharge under other than honorable conditions.  This document also confirms that the authority for the applicant’s separation was Army Regulation 635-200, paragraph 13-5a(1), and that the Separation Program Designator (SPD) for separation was "JKA".

19.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

20.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, in pertinent part, establishes policy and prescribes procedures for separating members because of misconduct and provides specific categories which include, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.  This document also shows, in pertinent part, that action will be taken to separate a member when it is clearly established that, despite attempts to rehabilitate or develop the individual into a satisfactory Soldier, any further effort is unlikely to succeed.  This document also shows that an individual separated under this provision of the Personnel Separations regulation will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

21.  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, 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.

22.  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.

23.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

24.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's discharge, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  This regulation identifies the SPD code of "JKA" as the appropriate code to assign Soldiers separated under the provisions of paragraph 13-5a, Army Regulation 635-200, by reason of misconduct based on frequent involvement of a discreditable nature with authorities.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records are in error and that his under other than honorable conditions discharge should be upgraded to an honorable discharge in order for him to qualify for medical benefits as a U.S. Army veteran.

2.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows that, prior to his separation, the applicant was twice advised that his separation under other than honorable conditions may deprive him of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  In addition, the applicant indicated on those two occasions that he understood these facts.  Moreover, the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government benefits.  Consequently, the applicant provides insufficient evidence to support his request.

4.  The evidence of record shows that the applicant served on active duty less than 9 months.  During his period of military service (i.e., from 11 January 1977 to 22 September 1977) the applicant received performance counseling on at least six occasions, a letter of admonition, a rehabilitative transfer, and non-judicial punishment four times for incidents relating to his poor performance and misconduct; thereby demonstrating frequent acts of a discreditable nature with military authorities.  The evidence of record clearly shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to an honorable discharge.  Furthermore, the applicant's record of service was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 September 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
21 September 1980.  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

___MKP _  __LWR__  __REB __  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.




____Margaret K. Patterson_____
          CHAIRPERSON



INDEX

CASE ID
AR20060011816
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/15
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19770922
DISCHARGE AUTHORITY
AR 635-200, Paragraph 13-5a(1)
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.