IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:  AR20080014381 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he was neither court-martialed nor received a bad conduct discharge and that he needs his discharge upgraded so he may apply for and receive Department of Veterans Affairs (DVA) medical benefits.

3.  The applicant did not provide any supporting documentary evidence in support of his 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 records show that he enlisted in the Regular Army for a period of 3 years on 6 June 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  He was discharged on 30 September 1976 for the purpose of immediate reenlistment and reenlisted in the Regular Army on 1 October 1976. His reenlistment contract is not available for review with this case.  The highest grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s awards and decorations include the National Defense Service Medal, the Good Conduct Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any achievements or significant acts during his military service.

4.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows the applicant was reported in an absent without leave (AWOL) status from 4 October 1974 through 9 October 1974 and from 13 September 1978 through 14 September 1978. 

5.  On 24 July 1975, the applicant was issued a letter of admonition for exercising poor judgment in employing physical force to intimidate or coerce a trainee, causing the trainee to strike the applicant on the head with a brick.

6.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 25 July 1977, for disobeying a lawful order, on or about 10 July 1977; and failing to go at the time prescribed to his appointed place of duty, on or about 11 July 1977.  His punishment consisted of reduction to private first class (PFC)/E-3 (suspended for 60 days), forfeiture of $150.00 pay per month for 2 months (suspended for 60 days), and 21 days of extra duty; and

	b.  on 14 October 1977, for wrongfully possessing some amount of marijuana on or about 1 October 1977.  His punishment consisted of reduction to PFC/E-3, forfeiture of $150.00 pay per month for 2 months (suspended for 60 days), and 25 days of extra duty.

7.  On 4 March 1978, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his two instances of
Article 15 and 3 instances of letters of indebtedness.  The immediate commander further remarked that the applicant had a history of minor misconduct and that he also demonstrated a lack of responsibility in maintaining 

his financial affairs.  The applicant was furnished with a copy of this bar on
25 April 1978, but he declined to submit a statement on his own behalf.  His bar was approved on 14 May 1978.

8.  On 12 July 1978, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for leaving his appointed place of duty without authority, on or about 21 June 1978.  His punishment consisted of reduction to private (PV2)/E-2 and 14 days of extra duty.

9.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the applicant’s DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 7 November 1978 with a character of service of under other than honorable conditions.  The authority for separation and reason are not shown on the DD Form 214.  This form shows he completed 4 years, 5 months, and 2 days of total creditable military service and had 8 days of lost time.  

10.  The “Authority for Departure” on the applicant’s DA Form 137 (Installation Clearance Record), dated on or about 6 November 1978, shows the entry “Chapter 14, AR 635-200,” indicating that the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations), by reason of misconduct.

11.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

12.  On 2 December 2005, in response to the applicant’s petition to the ABCMR for an upgrade of his discharge, the applicant was notified that his records did not contain the reason or authority for his discharge and that there was no information concerning the processing of his discharge.  He was further notified that there was a presumption that what the Army did in his case was correct and that the burden of proving otherwise was his responsibility.

13.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under 
this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  AR 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.

15.  AR 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.  The applicant’s record is void of the facts and circumstances that led to his discharge.  He was previously advised that there is a presumption that what the Army did in his case was correct and the burden of proving otherwise is his responsibility.  However, he did not submit any substantiating evidence that would warrant an upgrade of his discharge.

2.  The evidence of records show the applicant had a history of misconduct ranging from the minor offense of failing to go at the time prescribed to his appointed place of duty to the more serious offenses of being AWOL and possessing marijuana.  It is presumed that the applicant’s commander initiated separation action against the applicant for misconduct.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence of record further shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His record of service shows he had 3 instances of Article 15, 2 instances of AWOL, a letter of admonishment, and a Bar to Reenlistment Certificate.  Based on his record of indiscipline, the applicant's service clearly 
does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.

4.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that he should contact a local or regional DVA officer/counselor who can best advise him on his eligibility for benefits.

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.


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      _______ _   _______   ___
               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)                                         AR20080014381



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ABCMR Record of Proceedings (cont)                                         AR20080014381



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