RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070016513 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded based on his 
20 years of civilian service.

3.  The applicant provides three certificates citing his accomplishments in service in the Government of the United States.

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.  On 26 July 1973, the applicant completed 4 months and 4 days of initial active duty for training and was returned to state control as a member of the Virginia Army National Guard.  He was awarded the military occupational specialty 16F (light air defense artillery crewman).

3.  On 23 April 1974, the applicant enlisted in the Regular Army for a period 
of 3 years.  The applicant reenlisted on 28 October 1977 for a period of 4 years and extended this enlistment for 3 months.  On 12 November 1981, the applicant immediately reenlisted for a period of 3 years.  

4.  On 10 August 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failure to go at the prescribed time to his appointed place of duty and being drunk and disorderly on 8 July 1982.


5.  On 29 July 1983, the applicant's commander initiated a Bar to Reenlistment Certificate, recommending that the applicant be barred from reenlistment based his having been charged with driving under the influence in May 1982, arrested for being drunk and disorderly on 8 July 1982, arrested for driving with suspended license, and arrested for being drunk in public and assaulting a police officer on 2 July 1983.

6.  On 27 March 1984, the applicant accepted NJP under Article 15, UCMJ for
assault on a person by placing his hands around her throat to strangle her, being absent without leave during the period from 17 - 21 February 1984, and failure to obey a lawful order from a commissioned officer.

7.  The applicant's separation processing package was not available for the Board's review.

8.  On 20 June 1984, the applicant was discharged by reason of misconduct due to a pattern of misconduct.  The applicant had completed 6 years, 6 months, and 20 days of active service of which 2 years, 7 months, and 9 days is characterized as under other than honorable conditions.

9.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Included in the categories for discharge was a pattern of misconduct including  discreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline.  Action will be take 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 considered appropriate.

10.  Army Regulation 635-5 (Separation Documents), then in effect, governed the preparation of the DD Form 214.  It stated, in pertinent part, that effective 
1 October 1979, DD Forms 214 would no longer be issued for immediate reenlistments and that all service would be continuous from the date the last DD Form 214 was issued.  This regulation further provided for the entry of periods for which a DD Form 214 was not issued in Item 18 (Remarks) of the DD Form 214.

11.  Paragraph 16-3 of Army Regulation 635-200, then in effect, states, in pertinent part, that when a soldier is accepted for immediate reenlistment he will be discharged and reenlisted on the day following discharge. The regulation further states that the service of a soldier discharged per paragraph 16-3 will be characterized as honorable unless entry-level separation is required.
12.  Army Regulation 635-200 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.

13.  Army Regulation 635-200 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.

14.  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 certificates of achievement submitted by the applicant were noted.  However, it should be noted that post service conduct is not normally sufficient for upgrading a properly issued discharge.  In addition, discharges are not normally upgraded solely based on time.

2.  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. 

3.  Although the applicant's separation package was not available it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  In the absence of 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.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

6.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

8.  DD Forms 214 are no longer issued effective 1 October 1979 for immediate reenlistments.  Therefore, when the applicant reenlisted on 12 November 1981 he was not issued a DD Form 214 for his period of honorable service from 
28 October 1977 to 11 November 1981 (771028 to 811111).  Therefore, it is appropriate to add this period of honorable service in Item 18 of his DD Form 214 with a separation date of 20 June 1984.

9.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PHM __  __KSJ__  __JGH__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by amending Item 18 of his DD Form 214 with a separation date of 20 June 1984 to include the entry, "Immediate reenlistments this period:  771028 - 811111."





      ___        PHM                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070016513



6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508