IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080008944 


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 discharge be upgraded.

2.  The applicant states that the fight with the noncommissioned officer was an argument in which he (the applicant) was injured.  He was not fighting and yet he still received an injury and was discharged.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 9 September 1974.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 14 April 1975, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana.

4.  On 11 August 1975, the applicant accepted NJP under Article 15, UCMJ, for absenting himself from his unit.  

5.  On 28 October 1975, the applicant accepted NJP under Article 15, UCMJ, for two specifications of absenting himself from his unit.

6.  On 9 January 1976, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from on or about 4 January to on or about    6 January 1976.

7.  On 13 August, 1976, the applicant accepted NJP under Article 15, UCMJ, for three specifications of failing to go to his appointed place of duty and one specification of disobeying a lawful order from his superior noncommissioned officer.

8.  On 1 December 1976, the applicant accepted NJP under Article 15, UCMJ, for being AWOL from on or about 11 October to on or about 25 October 1976, for failing to go to his prescribed place of duty, and for two specifications of disobeying a lawful order from his superior noncommissioned officer.

9.  On 22 December 1976, the applicant accepted NJP under Article 15, UCMJ, for two specifications of failing to go to his appointed place of duty.

10.  On 3 January 1977, the applicant accepted NJP under Article 15, UCMJ, for being derelict in the performance of his duties and for being AWOL from on or about 23 December to on or about 27 December 1976.

11.  On 24 March 1977, the applicant accepted NJP under Article 15, UCMJ, for disobeying a lawful order from his superior noncommissioned officer and for failing to go to his appointed place of duty.

12.  On 20 April 1977, the applicant accepted NJP under Article 15, UCMJ, for two specifications of failing to go to his appointed place of duty.


13.  The applicant’s discharge packet is not available.

14.  On 9 June 1977, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1), with a characterization of service of under other than honorable conditions.  He had completed 2 years, 8 months, and 11 days of creditable active service and had 21 days of lost time.  He was given a separation program designator code of JKA (separated under the provisions of Army Regulation 635-200, paragraph 13-5a(1) by reason of misconduct – frequent involvement of a discreditable nature with authorities).

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, paragraph 13-5a(1) contained the policy and outlined the procedures for separating individuals when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

16.  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.  

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  Considering the applicant accepted NJP under Article 15, UCMJ on ten different occasions, the characterization of his service as under other than honorable conditions was and still is appropriate.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ____xx__  ___xx___  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.



      _____xxxxx____________
               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)                                         AR20080008944



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ABCMR Record of Proceedings (cont)                                         AR20080008944



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