IN THE CASE OF:	  

		BOARD DATE:	        05 AUGUST 2008

		DOCKET NUMBER:  AR20080006878 


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 undesirable discharge be upgraded to an honorable or general discharge. 

2.  The applicant essentially states that he did not deserve an undesirable discharge.

3.  The applicant provides no additional evidence in support of this 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 records show that he enlisted in the Regular Army on 15 September 1972.  

3.  Between 2 April 1973 and 11 May 1973, the applicant twice accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit from on or about 29 December 1972 until on or about 16 March 1973, and again from on or about 7 May 1973 until on or about 9 May 1973.  Collectively, his punishment consisted of forfeiture of $200, extra duty for 7 days, and restriction for 52 days.

4.  On 12 March 1974, the applicant was convicted by a summary court-martial for absenting himself without authority from his unit on or about 5 June 1973, and remaining so absent until on or about 27 November 1973.  He was sentenced to forfeit $216.00 pay per month for 1 month, to be reduced from private/E-2 to private/E-1, and to be restricted to the limits of his unit of assignment for 45 days. This sentence was also approved and ordered executed on 12 March 1974.

5.  Between 26 July 1974 and 25 July 1975, the applicant accepted NJP under Article 15 of the UCMJ on five occasions; each time for absenting himself without authority from his unit.  Collectively, his punishment consisted of forfeiture of $310.00, extra duty for 49 days, and restriction for 14 days.

6.  On 17 June 1975, the applicant's duty status was changed from present for duty to confined by civil authorities, as the applicant was being held in Junction City, Kansas pending payment of traffic violations.  He was released on 20 June 1975.  

7.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not available for review, the applicant's military records contained a properly constituted DD Form 214.  This document shows that the applicant was discharged on 2 January 1976 under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 13 (Separation for Unsatisfactory Performance).  This document also shows that he was discharged under other than honorable conditions and furnished a DD Form 258A (Undesirable Discharge Certificate).   

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

9.  The applicant essentially stated that he did not deserve an undesirable discharge.

10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the Soldier will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  At the time, an undesirable discharge was normally appropriate for a Soldier discharged for misconduct; however, the separation authority could direct a general discharge if such is merited by the Soldier’s overall record.

11.  Army Regulation 635-200, paragraph 3-7a, also provides, in pertinent part, 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.

12.  Army Regulation 635-200, paragraph 3-7b, further provides, in pertinent part, 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.

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.  This 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 undesirable discharge should be upgraded to an honorable or general discharge.

2.  Notwithstanding the applicant's contention that he did not deserve an undesirable discharge, the fact that he was convicted by a summary court-martial and accepted NJP under Article 15 of the UCMJ on seven occasions within a 
27-month period essentially proves otherwise. 

3.  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.  The applicant also failed to provide evidence which proves, by a preponderance of the evidence, that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  Based on the applicant's extensive record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080006878



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ABCMR Record of Proceedings (cont)                                         AR20080006878



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