IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080011637 


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 discharge. 

2.  The applicant essentially states that his multiple instances of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) did not warrant an undesirable discharge, and that his NJP was assigned to trivial issues.  He also states, in effect, that his discharge has been upgraded by the Department of Veterans Affairs (DVA) to a general discharge under honorable conditions, and that he is currently receiving compensation benefits for a service-connected disability.   

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter, dated 3 July 2008, from the National Personnel Records Center 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 27 February 1970 for training in military occupational specialty (MOS) 32E (Fixed Plant Carrier Repairman).  He completed basic training and entered advanced individual training for MOS 32E, but he did not complete this training and was not awarded MOS 32E.  He then attended advanced individual training and was awarded MOS 11B (Light Weapons Infantryman).  After attending an Armored Personnel Carrier Driver's Course at Fort Knox, Kentucky, he departed for the Republic of Vietnam on 7 November 1970, where he was awarded the Combat Infantryman Badge.  However, prior to departing Vietnam, the applicant accepted NJP under Article 15 of the UCMJ on three occasions between 22 January 1971 and 13 August 1971 for carelessly discharging a .45 caliber pistol in the barracks, sleeping at his post while posted as a sentinel in an area entitled to hostile fire pay, and wrongfully possessing heroin.  Collectively, his punishment for these offenses consisted of forfeiture of $87.00, three suspended reductions in rank which were ultimately remitted without action, 42 days of restriction, with 28 days of this restriction suspended and later remitted without action, and 42 days of extra duty, with 28 days of this extra duty suspended and later remitted without action.  He returned to the continental United States on 6 November 1971, and was reassigned to Fort Carson, Colorado for what would be his final permanent duty assignment.  

3.  Between 31 January 1972 and 17 May 1972, the applicant accepted NJP under Article 15 of the UCMJ on four occasions for being absent without leave (AWOL) from on or about 29 December 1971 to on or about 21 January 1972 and again from on or about 8 May 1972 to on or about 9 May 1972, absenting himself without proper authority from his appointed place of duty on three occasions, and wrongfully appearing with an unauthorized combat patch and the wrong name tag on his fatigue shirt.  Collectively, his punishment for these offenses was three reductions in rank and pay grade, forfeiture of $220.00, restriction for 43 days, and extra duty for 65 days.

4.  In conjunction with the applicant's pending separation proceedings, a mental status evaluation was conducted on him, and he was essentially cleared for any administrative action deemed appropriate by his command.

5.  Although all of the correspondence from his separation packet was not present in his military records, a letter, dated 11 July 1972, essentially shows that the applicant's commanding officer recommended that he be discharged under the provisions of Army Regulation 635-212 for unfitness.  He recommended the applicant's discharge because of his frequent incidents of a discreditable nature with military authorities.  He also recommended that the applicant be furnished an Undesirable Discharge Certificate.  His military records also contained a statement, dated 18 July 1972, in which the applicant indicated that he had been advised of his rights under Article 31 of the UCMJ on 23 May 1972.  The applicant also stated that he did not think there was any chance for his rehabilitation while still in the Army, and that he no longer cared as to what kind of discharge he received.  Additionally, his military records contain a properly constituted DD Form 214, which shows that he was discharged under the provision of Army Regulation 635-212, and that he was issued a DD Form 258A (Undesirable Discharge Certificate).

6.  In a letter, dated 11 April 1980, the Army Discharge Review Board (ADRB) informed the applicant that his petition to upgrade his discharge had been denied.

7.  On 22 August 1980, the ADRB again reviewed his discharge under the provisions of the Court order in Giles v. Secretary of the Army.  The ADRB determined that the applicant's discharge did not involve the introduction of evidence developed directly or indirectly through the urinalysis testing program and, as a result, the applicant was not a member of the class defined by the aforementioned court order.

8.  The applicant essentially stated that his multiple instances of NJP under Article 15 of the UCMJ did not warrant an undesirable discharge, and that his NJP was assigned to trivial issues.  He also stated, in effect, that his discharge has been upgraded by the DVA to a general discharge under honorable conditions, and that he is currently receiving compensation benefits for a service-connected disability.   

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation stated, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a 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.

11.  Army Regulation 635-200, paragraph 3-7b 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.

12.  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 discharge. 

2.  The applicant's contention that the NJP that he accepted was due to trivial issues was considered, but not found to have merit.  While the NJP he accepted for appearing with an unauthorized combat patch and the wrong name tag on his fatigue shirt, which is a uniform violation, might be considered by some to be trivial, his other offenses, which included carelessly discharging a .45 caliber pistol in the barracks, sleeping at his post while posted as a sentinel in an area entitled to hostile fire pay, wrongfully possessing heroin, two periods of AWOL, and three instances of absenting himself without proper authority from his appointed place of duty, are hardly trivial offenses.  

3.  The fact that the applicant essentially indicated that the DVA upgraded his undesirable discharge to a general discharge, and that he is currently receiving compensation benefits for a service-connected disability was also noted.  However, the DVA has no authority to upgrade discharges.  Additionally, if the DVA is in fact awarding him any benefits, that is strictly a matter between the applicant and the DVA and has no bearing in this case.

4.  Although all of the correspondence from his separation packet was not present in his military records, it is clear that the applicant was discharged under the provisions of Army Regulation 635-212 due to frequent incidents of a discreditable nature with military authorities.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's entire record of service, which included service in Vietnam, was considered.  However, the applicant's offenses, when taken together, so far outweigh his record of service that upgrade of his discharge cannot be justified.  

6.  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.  As a result, he is not entitled to either an honorable or general discharge.

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.




      _______ _ 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)                                         AR20080011637



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ABCMR Record of Proceedings (cont)                                         AR20080011637



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