RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2008
	DOCKET NUMBER:  AR20070014097 


	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.


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	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 honorable.  Additionally, the applicant wants an explanation of the meaning of Section VI, Army Regulation 635-206; Separation Program Designator (SPD) "JKB"; what "Paragraph 2-22, Army Regulation 601-280 applies" means; and what "Format 500" stands for.

2.  The applicant states, in effect, that he was discharged for a crime committed while he was on leave.  He served his probation and was cleared in 1986.  The discharge he received makes him feel real rotten inside.  His service, he states, was honorable; his leave was not.  He should have fought harder to stay in the military so that he could reenter later during wartime.

3.  The applicant adds that he would like an upgrade of his discharge so he can go to Iraq or Afghanistan with the Army or as a contractor.  He wants the most dangerous duty as machine gunner or transport driver, anything near combat so that he can correct his mistakes in life.

4.  The applicant summarizes his request by entering a plea to the Board to please allow this correction statement in support of a VA (Department of Veterans Affairs) benefit claim at the Regional Office, St. Paul.

5.  In support of his request, the applicant provides a duplicate of a letter he addressed to the VA and a copy of his return address.

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 evidence shows the applicant enlisted in the Regular Army on 26 January 1976.  Following completion of his basic combat and his advanced individual training, he was awarded the primary military occupational specialty (MOS) 82C, Artillery Survey Specialist.  The applicant remained assigned at Fort Sill, Oklahoma, as his first duty station.

3.  On 25 September 1976, the applicant departed absent without leave (AWOL) from his unit of assignment.  He returned to his unit on 30 September 1976.  The applicant again departed AWOL from his unit on 4 October 1976 and while on this unauthorized absence, he was arrested by civil authorities in Ramsey County, Minnesota, for burglary.

4.  On 29 November 1976, the applicant was tried in the District Court, Second Judicial District, County of Ramsey, State of Minnesota.  He was convicted pursuant to his entering a plea of guilty to the charge of burglary and was committed to the Minnesota Corrections Authority for a period of five years; however, the execution of that sentence was stayed and he was placed on probation conditioned upon his service for one year in the City-County Workhouse.  That sentence was further stayed on the condition he was returned to military authorities at the appropriate military installation for such processing as the military deemed necessary.  Subsequent to that period of time, that was, his release from the workhouse, he would be on probation for a period of five years to the Department of Court Services, Ramsey County.

5.  On 16 December 1976, the applicant's unit commander notified him he was recommending that he be discharged from the Army under the provision of Army Regulation 635-206, due to his having been convicted in a civil court.  In this notification, he was advised he had the right to request appointment of military counsel and to present his case to a board of officers, to submit a statement in his own behalf, and to waive his rights in the written form or by declining to reply to the letter of notification.

6.  On 16 December 1976, the applicant acknowledged the letter of notification and requested that a board of officers hear his case.  The applicant requested representation by a military attorney and opted not to submit a statement in his own behalf.  He requested to make a personal appearance before the board of officers and further declined minority membership on the board of officers.

7.  In his acknowledgement, the applicant stated he understood that as a result of issuance of a discharge under other than honorable conditions, he could be 

ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

8.  On 16 December 1976, the applicant's unit commander requested that a board of officers be convened to determine if he should be separated from the service prior to the expiration of his term of service under the provisions of AR 635-206.  The applicant's unit commander rated his conduct and efficiency as unsatisfactory.

9.  On 21 January 1977, the applicant underwent a mental status evaluation.  His behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was level; his thinking process was clear; his thought content was normal; and his memory was good.  The evaluating physician found him to be mentally responsible; able to distinguish right from wrong and adhere to the right; and considered to have the mental capacity to understand and participate in separation proceedings, and to meet the retention standards of Army Regulation 40-501, chapter 3.  He was determined to manifest no significant mental illness.  On the same date, he underwent a separation physical examination and was found qualified for separation.

10.  The applicant's chain of command unanimously recommended approval of his request to appear before a board of officers to determine whether he should remain in the Army or be separated from the Army prior to the expiration of his term of service under the provisions of AR 635-206.

11.  On 17 March 1977, an administrative discharge board of officers convened at Fort Sill, Oklahoma.  After carefully considering all of the evidence, the board found that the applicant was undesirable for retention in the military due to his civil conviction and recommended that he be discharged from the Army with an under other than honorable conditions discharge.

12.  On 5 April 1977, the applicant appealed the type of discharge that was recommended by the board of officers.

13.  On 11 April 1977, the applicant's appeal was denied and his discharge with an under other than honorable conditions discharge was directed.

14.  The applicant was separated with an under other than honorable conditions discharge in the rank and pay grade of Private, E-1, on 14 April 1977, under the provisions of Army Regulation 635-206, Section VI (Misconduct:  Convicted or 

adjudged a juvenile offender by a civil court during current term of active military service).  The SPD "JKB" was applied to the applicant's DD Form 214, in Item 9c. (Authority and Reason).  On the date of his discharge, he had completed 11 months and 7 days active military service with 103 days of time lost due to AWOL and civil confinement.

15.  The applicant’s record documents that the highest rank and pay grade he held on active duty was Private, E-2.  The applicant did not advance beyond this rank and pay grade and his service personnel records contain no documented acts of valor, achievement, or service warranting special recognition.

16.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 22 December 1977 and asked to be allowed to appear before the ADRB.  The applicant failed to respond to a scheduling letter and on 15 November 1979, absent the applicant, a hearing was held by the ADRB.  The applicant was given consideration for the upgrading of his discharge based on his records and all available evidence.  On 5 February 1980, he was notified that after having reviewed his case, the ADRB had decided he had been properly and equitably discharged and denied his appeal.

17.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33a of the regulation provided in pertinent part that members convicted by civil authorities would be considered for separation.  A discharge under other than honorable conditions was normally considered appropriate.

18.  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.

19.  AR 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 separation specifically allows such characterization.

20.  Army Regulation 635-5-1 states that SPD Codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of an SPD code is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.  It notes that "JKB" is the appropriate SPD code for individuals separated for Misconduct (Civil Conviction).

21.  Army Regulation 601-280 prescribes criteria for the Army Retention Program and sets forth policies and command responsibilities for the immediate reenlistment or extension of enlistment of Soldiers currently serving in the Active Army.  The term, "Paragraph 2-22, Army Regulation 601-280 applies" means an applicant for reenlistment or extension must meet all criteria for reenlistment or extension either with or without a waiver.

22.  Army Regulation 600-8-105 prescribes the policies and mandated operating tasks for the orders program of the Military Personnel (MILPER) System.  It establishes standards and provides an operational document in a logical sequence.  Orders Format 500 is used to direct, order, and to announce the discharge (including the resignation) of enlisted personnel, from all status, of enlisted personnel.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence of record shows that civil authorities apprehended the applicant for burglary.  He entered a plea of guilty to the charge.  He was tried, convicted, and sentenced to 5 years probation for the charge.

3.  When notified of his unit commander's intention to separate him from the Army, the applicant requested that an administrative board of officers hear his case.  After consideration of all available evidence, the administrative board of 

officers found that the applicant was undesirable for retention in the Army due to his civil conviction and recommended that he be discharged from the Army and provided an under other than honorable conditions discharge.

4.  The applicant appealed the type of discharge recommended by the board of officers and the approving authority denied his appeal and directed he be discharged with the discharge recommended by the board of officers.

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He asked to appear before the ADRB, then failed to respond to the scheduling letter.  The applicant's case was decided in a hearing held by the ADRB and consideration was given to upgrading his discharge based on his records and all the available evidence.  The ADRB decided that based on his records and all available evidence, he had been equitably and properly discharged and denied his request for an upgrade of his discharge.  He was so notified of this denial on 5 February 1980.

6.  The applicant's desire to have his under other than honorable conditions discharge upgraded to honorable to enable him to make application to the VA to qualify for available benefits and to go to Iraq as either a Soldier or as a contractor is acknowledged; however, the Board does not grant relief solely for the purposes of qualifying applicants for benefits administered by the VA and to improve their employment opportunities.

7.  The answers to the questions asked by the applicant in his request for correction of military record are embedded in this Record of Proceedings and further explanation is not deemed required.

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.




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          CHAIRPERSON


INDEX

CASE ID
AR20070014097
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19770414
DISCHARGE AUTHORITY
AR 635-206, Section VI
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.000
2.
144.0133
3.
144.9227
4.

5.

6.