IN THE CASE OF:	  

		BOARD DATE:	  16 September 2008

		DOCKET NUMBER:  AR20080006045 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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, his squad leader was trying to take his wife, so he would send him to the field.  He also states that if he was late for work, he was sent to correctional custody.

3.  The applicant provides no additional documentary evidence.

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 service records show he enlisted in the U.S. Army Reserve on 22 October 1974 and entered active duty in the Regular Army for a period of 4 years on 30 October 1974.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 26 August 1975.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for, on or about 0730 hours, 4 August 1975, without authority, absenting himself from his unit, to wit:  72nd  Engineer Company, 197th Infantry Brigade, Fort Benning, Georgia, and remaining absent until on or about 0700 hours, 7 August 1975, in violation of Article 86, UCMJ.  The punishment imposed was reduction to private (PVT)/pay grade E-2 (suspended for 90 days), a forfeiture of $100.00 per month for 2 months, and 14 days in correctional custody.  This document also shows the applicant appealed the Article 15 proceedings and submitted matters in defense, mitigation, and/or extenuation.  After consideration of all matters presented in the appeal, the battalion commander denied the applicant’s appeal.  It was noted in Part II (Appellate Action), Item 10, that the proceedings were conducted in accordance with the law and regulations, and the punishment was neither too severe nor unjust for the offense.  The battalion commander noted in Part III (Attachments and/or Comments) that the applicant was advised the appeal was denied, but he was unable to get the applicant’s signature on the document.

4.  The applicant's military service records contain a DA Form 4187 (Personnel Action), dated 22 October 1975, that shows the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL), effective
0730 hours, 21 October 1975.

5.  The applicant's military service records contain a DA Form 4187, dated
24 October 1975, that shows the applicant's duty status was changed from AWOL to PDY, effective 0730 hours, 24 October 1975.

6.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 4 December 1975.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0730 hours, 11 November 1975, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:  72nd Engineer Company, Work Call formation, held in the vicinity of Building 9001, located at Fort Benning, Georgia, in violation of Article 86, UCMJ; and for, on or about 0700 hours, 29 November 1975, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:
72nd Engineer Company, Guard Mount formation, held in the vicinity of Building 9013, located at Fort Benning, Georgia, in violation of Article 86, UCMJ.  The punishment imposed was reduction to private (PVT)/pay grade E-2, a forfeiture of $50.00, and 14 days of extra duty.  This document also shows that the applicant did not appeal the Article 15 proceedings.

7.  The applicant's military service records contain a DA Form 4187, dated
15 March 1976, that shows the applicant's duty status was changed from PDY to AWOL, effective 0730 hours, 12 March 1976.

8.  The applicant's military service records contain a DA Form 4187, dated
16 March 1976, that shows the applicant's duty status was changed from AWOL to PDY, effective 0730 hours, 16 March 1976.

9.  The applicant's military service records contain a DA Form 4187, dated
18 March 1976, that shows the applicant's duty status was changed from PDY to AWOL, effective 0730 hours, 17 March 1976.

10.  The applicant's military service records contain a DA Form 4187, dated
16 April 1976, that shows the applicant's duty status was changed from AWOL to dropped from rolls (DFR) of the unit, effective 0730 hours, 15 April 1976.

11.  The applicant's military service records contain a DA Form 4187, dated
29 July 1976, that shows the applicant's duty status was changed from DFR to return to military control (RMC), effective 0700 hours, 14 July 1976.

12.  The applicant's military service records contain a FDPCF Form 691 (Personnel Control Facility Interview Sheet), dated 14 July 1976.  This document contains, in pertinent part, the instructions, “Check the Following Comments Carefully and Honestly.”  This document shows that in response to the comment, “I want to return to duty as soon as possible” the applicant placed a checkmark in the “No” column; in response to the comment, “I want to help with my family problems and then wish to return to duty” the applicant placed a checkmark in the “No” column; and in response to the comment, “I want to be separated from the Army as soon as possible” the applicant placed a checkmark in the “Yes” column.  In response to the comment, “Give a significant reason for your AWOL” the applicant entered, “I wanted out.”  This document also shows that the applicant and interviewer both placed their signatures on the document.

13.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 16 July 1976, that shows charges were preferred against the applicant by the captain serving as Officer in Charge, Holding Area, U.S. Army Personnel Control Facility, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, in that the applicant did, on or about 17 March 1976, without authority, absent himself from his unit, to wit:  to 72nd Engineer Company,
197th Infantry Brigade, Fort Benning, Georgia, and did remain so absent until on or about 14 July 1976.

14.  On 26 July 1976, the applicant requested a discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or an undesirable discharge, if the request is approved; of the effects of an undesirable discharge, if the request for discharge is approved; and the procedures and rights available to the applicant.

15.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged, or lesser included offense(s) therein; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions with an Undesirable Discharge Certificate; 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’s counsel, a commissioned officer serving in the Judge Advocate General Corps, also signed this document.

16.  On 27 July 1976, the captain serving as Commander, Company A, U.S. Army Personnel Control Facility, Fort Dix, New Jersey, recommended approval of the applicant’s request for discharge with the issuance of an Undesirable Discharge Certificate and forwarded his recommendation to the Commander, U.S. Army Personnel Control Facility, Fort Dix, New Jersey.

17.  The major serving as Commander, U.S. Army Personnel Control Facility, Fort Dix, New Jersey, also recommended approval of the applicant’s request for discharge and recommended an Undesirable Discharge Certificate be issued.

18.  On 5 August 1976, the major general serving as Commander, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, approved the applicant's request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200, with the Separation Program Designator (SPD) Code of “KFS,” and directed that the applicant be furnished an Undesirable Discharge Certificate.  The commander also directed that the applicant be reduced to the lowest enlisted grade.

19.  The applicant's military service records contain a DD Form 214 (Report of Separation from Active Duty), with an effective date of 18 August 1976.  This document contains the authority and reason for separation, along with the character of service, and shows that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, and his character of service was under conditions other than honorable.  This document also shows that the applicant was issued a SPD Code of “KFS” and furnished a DD Form 258A (Undesirable Discharge Certificate).  Item 21 (Time Lost) contains the entry
“129 Days.”  At the time of the applicant’s discharge, he was credited with completing 1 year, 5 months, and 10 days net active service this period; 1 year,
5 months, and 10 days total active service; 0 years, 0 months, and 8 days total prior inactive service; and 1 year, 5 months, and 18 days total service for pay.

20.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 25 August 1980, that shows the applicant requested upgrade of his undesirable discharge to an honorable discharge.  On 17 August 1981, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB’s decision on 22 September 1981.

21.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.   

22.  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 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

23.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) 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. It identifies the SPD code of “KFS” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial.

24.  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.

25.  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.

26.  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.

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 his squad leader was trying to take his wife and this was wrong.  He also contends that his squad leader would send him to the field or to correctional custody, if he was late for work.


2.  The evidence of record shows that the applicant received nonjudicial punishment for being AWOL from 4 August 1975 through 7 August 1975 (emphasis added) and the punishment imposed by his commander was reduction to PVT/E-2 (suspended for 90 days), a forfeiture of $100.00 per month for 2 months, and 14 days of correctional custody (emphasis added).  The evidence of record also shows the applicant received nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty on 2 separate occasions and the punishment imposed by his commander was reduction to PVT/E-2, a forfeiture of $50.00, and 14 days of extra duty.

3.  There is no evidence of record, and the applicant provides insufficient evidence, to show that his squad leader was trying to take his wife.  There is also no evidence that shows the applicant was improperly sent to the field for training, or that he was assigned to Correctional Custody for being late for work.  The evidence of record does shows that, upon his RMC on 14 July 1976, the applicant expressed no interest in helping with any (possible) family problems prior to returning to duty and, in response to the comment, “Give a significant reason for your AWOL” the applicant simply indicated, “I wanted out.”  Therefore, in view of the foregoing, the evidence of record fails to support the applicant’s contentions.

4.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service in lieu of trial by court-marital was proper and equitable and 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.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.

5.  The applicant’s record of service shows completion of just over 1 year and
5 months of his 4-year enlistment.  During this period of military service, the applicant received nonjudicial punishment on 2 occasions; for being AWOL for a period of 3 days and twice failing to go at the time prescribed to his appointed place of duty.  In addition, the applicant’s record documents 129 days time lost during the period of service under review.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  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.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006045



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ABCMR Record of Proceedings (cont)                                         AR20080006045



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