RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 MAY 2008
	DOCKET NUMBER:  AR20080002579 


	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 undesirable discharge be upgraded to a discharge under honorable conditions or to an honorable discharge.

2.  The applicant states, in effect, he was lied to by the recruiting sergeant in that he was told he could be a clerk in the Army but instead he was put into the motor pool as a canvas and web repairman.  He further states it was in the Army where he experimented with drugs and became an alcoholic.  He further states he accepted an undesirable discharge under the pretense that it would be upgraded 6 months after he was discharged.  He further states that his discharge has been downgraded to a dishonorable discharge without his being notified as to the reason or who downgraded the discharge.

3.  The applicant provides no additional evidence or official documentation in support of his application.

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 applicant's military personnel record shows he enlisted in the Regular Army on 18 March 1974 for a period of 2 years.  On a DA Form 3286-3-R (Statements for Enlistment), dated and signed by the applicant on 15 March 1974,  the applicant acknowledged that his initial assignment to training and/or duty would be determined in accordance with the needs of the Army.  He further acknowledged that his enlistment carried with it no guarantee or implied promise that he would be assigned to a specific training, duty, or location, not withstanding any personal qualification, previous training, job experience, or personal desires which he may have.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 43M (fabric/leather repairman).
3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 4 April, 13 June, and 24 September 1974.  His offenses included failure to obey a lawful order, being absent from appointed place of duty, two specifications of failure to go at the prescribed time to his appointed place of duty, and being absent without leave (AWOL) during the period from 30 August to 4 September 1974.

4.  On 25 November 1974, the applicant was convicted by a summary court-martial of disrespect toward his superior noncommissioned officer.  His sentence consisted of forfeiture of $229.00 for 1 month and confinement for 1 month.  The convening authority approved the sentence on 29 November 1974.  

5.  The applicant accepted NJP under Article 15, UCMJ, on 7 May, 2 July, 
24 July, and 18 August 1975.  His offenses included AWOL during the periods from 28 February to 10 March 1975 and from 28 June to 1 July 1975, leaving his post before regularly relieved, five specifications of failure to go at the prescribed time to his appointed place of duty, absent from appointed place of duty, failure to repair, and failure to obey a lawful order from a noncommissioned officer.  

6.  On 19 November 1975, the applicant pled guilty before a special court-martial for AWOL during the period from 12 September 1975 to 28 October 1975.  His sentence consisted of forfeiture of $200.00 for 2 months and confinement for 
6 weeks.  The convening authority approved the sentence on 3 December 1975.  
7.  The applicant accepted NJP under Article 15, UCMJ, on 2 April and 11 May 1976 for two specifications of being absent from appointed place of duty.

8.  The applicant's separation processing package was not available.

9.  On 19 August 1976, the applicant was discharged by reason of unfitness - frequent involvement of a discreditable nature with civil or military authorities.  He had completed 1 year, 11 months, and 15 days of active service that was characterized as under other than honorable conditions.  He had 170 days time lost.  He was issued an Undesirable Discharge Certificate.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 1 December 1978, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  On 25 February 1983, following a personal hearing with the applicant and his counsel, the ADRB denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

12.  Army Regulation 635-200 (Personnel Separations), then in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a, then in effect, provides for discharge of individuals for unfitness.  Among the reasons for unfitness are frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  This regulation further provided that an individual separated for unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

13.  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 that his recruiting sergeant lied to him concerning the type of training he would receive in the Army.

2.  According to the DA Form 3286-3-R, signed by the applicant on 15 March 1974, there were no promises, implied or in writing, made to the applicant upon his enlistment in the Regular Army.  Therefore, the evidence does not support the applicant's contention.

3.  The applicant contends he accepted an undesirable discharge under the pretense that it would be upgraded in 6 months.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the ABCMR requesting a change of their discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.  Therefore, the applicant's contention concerning automatic upgrade of his discharge is without merit.

5.  The applicant contends he experimented with drugs and became an alcoholic while he was in the Army.  However, the numerous charges the applicant was charged with, both during NJP and his courts-martial, do not show that drugs or alcohol were involved.  There is no record of the applicant having been treated for alcohol consumption or for drug abuse.  Therefore, there is no evidence the applicant's discharge was the result of his drug experimentation or alcoholism.   

6.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  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.

7.  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.

8.  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.

9.  Based on the foregoing, there is insufficient basis to change the characterization of the applicant's discharge to honorable or under honorable conditions.

10.  The applicant contends that his discharge has been downgraded to a dishonorable discharge.  The U.S. Army does not have a policy or regulation that provides for the downgrading of a discharge once it has been executed.  Therefore, the applicant's undesirable discharge under other than honorable conditions has not changed.


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.





      __________X____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002579



2


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