RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060015831 


	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:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 a general discharge under honorable conditions.

2.  The applicant states, in effect, that he was young and having problems adjusting to people with authority.  He also states, in effect, he did not have respect for others or himself while serving in the Army.  The applicant adds that he has learned from his mistakes and has become a better person.

3.  The applicant provides a copy of Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 30 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 14 July 1977, the date of his discharge from the Army.  The application submitted in this case is dated 30 October 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 and entered active duty in the Regular Army for a period of 3 years on 27 August 1974.  At the time of his entry on active duty the applicant was 18 years old.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 71B (Clerk Typist). The highest grade the applicant attained while serving on active duty was private first class/pay grade E-3.  At the time of his discharge he had completed 2 years, 10 months, and 17 days 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), dated 6 January 1976.  This document shows that non-judicial punishment was imposed against the applicant for, on or about 2 January 1976, without authority, absenting himself from his place of duty and remaining absent until on or about
5 January 1976, and also for absenting himself without authority on or about
6 January 1976.  His punishment consisted of forfeiture of $25.00 for 1 month and 7 days extra duty.

5.  The applicant’s military service records contain a copy of a DA Form 2627, dated 13 February 1976.  This document shows that non-judicial punishment was imposed against the applicant for having received two lawful commands from a superior commissioned officer that he did willfully disobey, on 30 January 1976, and for on or about 3 February 1976, without authority, failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to the grade of private (E-2), forfeiture of $65.00 for 1 month, and 14 days extra duty at 2 hours per day.

6.  The applicant’s military service records contain a copy of a DA Form 2627, dated 13 August 1976.  This document shows that non-judicial punishment was imposed against the applicant for, on or about 9 August 1976, without authority, absenting himself from his place of duty and remaining absent until on or about 10 August 1976.   His punishment consisted of forfeiture of $30.00 for 1 month and 7 days extra duty at 2 hours per day.

7.  The applicant’s military service records contain a copy of a DA Form 2627, dated 10 February 1977.  This document shows that non-judicial punishment was imposed against the applicant for having received four lawful commands and two lawful orders from a superior commissioned officer that he did willfully disobey on or about 30 December 1976, 3 January 1977, and 4 January 1977.  His punishment consisted of reduction to the grade of private (E-2) (suspended for a period of 60 days) and forfeiture of $40.00 for 1 month.

8.  The applicant’s military service records contain a copy of a DA Form 2627, dated 5 May 1977.  This document shows that non-judicial punishment was imposed against the applicant for, without authority, absenting himself from his place of duty on 18 April 1977, 25 April 1977, and 26 April 1977.  His punishment consisted of reduction to the grade of private (E-2) and 7 days extra duty.

9.  The applicant’s military service records contain a copy of a DA Form 2627, dated 11 May 1977.  This document shows that non-judicial punishment was imposed against the applicant for, on or about 27 April 1977, without authority, absenting himself from his place of duty.  His punishment consisted of reduction to the grade of private (E-1) (suspended for a period of 60 days) and 14 days extra duty.  On 24 May 1977, the suspension of the punishment of reduction to private (E-1) imposed against the applicant was vacated by the commander.

10.  The applicant's military service records contain a copy of a DA Form 3822-R (Report of Mental Status Evaluation), dated 13 May 1977, which was prepared by the medical official who examined the applicant prior to the initiation of the separation action.  This document shows, in pertinent part, that the medical official indicated that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in separation board proceedings.

11.  The applicant's military service records are absent a copy of the documentation related to the applicant's administrative separation action.

12.  The DD Form 214 (Report of Separation from Active Duty), issued to the applicant upon his separation, shows that he was discharged on 14 July 1977 in accordance with the provisions of Army Regulation 635-200, paragraph 13-5a(1), that the Separation Program Designator (SPD) Code was JKA", and his character of service was "Under Other Than Honorable Conditions."   At the time of his discharge he completed 2 years, 10 months, and 17 days active service.

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

14.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 13 (Separation for Unfitness or Unsuitability) of this Army regulation 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.

16.  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.

17.  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.

18.  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.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded to a general discharge under honorable conditions because he was young and having problems adjusting to people with authority, he did not have respect for others or himself while serving in the Army, and that he has since learned from his mistakes and become a better person.
2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, Chapter 1 (General Provisions), which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, 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 the applicant was 18 years old when he entered active duty and was over 21 years of age when he was discharged from the Army for misconduct.  The evidence of record also shows that the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right when he was examined by a medical official prior to his separation from the Army.  There is no evidence that indicates the applicant did not have the capacity to follow commands or orders and to adhere to doing what was right.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who also served in the U.S. Army during this period of time and successfully completed their military service commitment.

4.  The evidence of record shows that the applicant served on active duty less than 3 years.  During his period of military service, the evidence of record shows that the applicant received non-judicial punishment on 6 occasions for numerous incidents in which he absented himself from his appointed place of duty without authority, failed to go at the time prescribed to his appointed place of duty, and willfully disobeyed the lawful commands and orders of a superior commissioned officer.  In view of the foregoing, the applicant’s discharge accurately reflects his overall record of service.  In this regard, the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and 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 14 July 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
13 July 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

___WFC _  ___DLL _  ___RSV _  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.




      __William F. Crain_____
          CHAIRPERSON


INDEX

CASE ID
AR20060015831
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/31
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19770714
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.