IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080014231 


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 received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for being late to morning formations and accepted NJP around Christmas when he was on leave, but was counted as absent without leave (AWOL) even though he had leave paperwork at the time.  He also states, in effect, that he does not believe that three instances of NJP are grounds for an undesirable discharge, and that if a records check was obtained on him, it would show that he has never been in any trouble his whole life.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 10 January 2008; and three DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) from his NJP that he accepted on 5 December 1974, 26 January 1975, and 12 June 1975 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 18 April 1974.  He completed initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  After completing airborne training, he was assigned to Fort Bragg, North Carolina, for what would be his only permanent duty station.

3.  On 5 December 1974, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 0700 hours, 4 November 1974, and remaining so absent until on or about 0700 hours, 6 November 1974.  His punishment consisted of 14 days of extra duty.

4.  On 26 January 1975, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 0700 hours, 16 December 1974, and remaining so absent until on or about 0715 hours, 30 December 1974.  His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1, forfeiture of $81.00, and correctional custody for 7 days.

5.  On or about 24 March 1975, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 0200 hours, 4 February 1975, and remaining so absent until on or about 0630 hours, 6 February 1975.  His punishment consisted of forfeiture of $89.00 pay per month for 1 month and 14 days of extra duty.

6.  On or about 12 June 1975, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 0655 hours, 5 May 1975, and remaining so absent until on or about 0655 hours, 7 May 1975, and failing to go at the time prescribed to his appointed place of duty on or about 7 May 1975.  His punishment consisted for forfeiture of $80.00 pay per month for 1 month and 14 days of restriction.

7.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his complete 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 10 September 1975 under the provisions of chapter 13, paragraph 13-5a(1) (frequent involvement in incidents of a discreditable nature with civil or military authorities), Army Regulation 635-200 (Enlisted Personnel).  This document also shows that he was discharged under other than honorable conditions and furnished a DD Form 258A (Undesirable Discharge Certificate).  Item 27 (Remarks) of this document also shows that he had 59 days of lost time.

8.  On 12 November 1976, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  The applicant essentially stated that he received NJP under Article 15 of the UCMJ on two occasions for being late to morning formations and accepted NJP around Christmas when he was on leave, but was counted as AWOL even though he had leave paperwork at the time.  He also stated, in effect, that he does not believe that three instances of NJP are grounds for an undesirable discharge, and that if a records check was obtained on him, it would show that he has never been in any trouble his whole life.

10.  A Federal Bureau of Investigations (FBI) records check on the applicant revealed that since his discharge, he was arrested in 1991 for driving under the influence, in 1992 for obtaining a controlled substance by fraud, and in 1997 for driving under the influence a second time.

11.  Army Regulation 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provided for separation due to unfitness 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 that a general discharge be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case.

12.  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.

13.  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.

14.  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.  The applicant's contention that he was given an undesirable discharge for being late to two morning formations and for being counted as AWOL even though he had leave paperwork at the time was considered, but not found to have any merit.  The applicant accepted NJP on four occasions, and none of his offenses included simply being late for a morning formation.  Additionally, the applicant provided no evidence to support his contention that he had leave paperwork for a period of time in which he was counted as AWOL.

3.  The applicant specifically contended that if a records check was obtained on him, it would show that he has never been in any trouble his whole life.  However, the FBI report obtained on the applicant clearly proves otherwise.

4.  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.

5.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his complete separation packet, are not available for review, it is clear that he was discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1), due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  The applicant 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.

6.  Based on the applicant's record of indiscipline, which included him accepting NJP under Article 15 of the UCMJ on four occasions and 59 days of lost time, the applicant's 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

___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)                                         AR20080014231



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ABCMR Record of Proceedings (cont)                                         AR20080014231



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