IN THE CASE OF:	 

		BOARD DATE:	  13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014710 


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 undesirable discharge, in effect, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he was told his discharge would automatically be changed to an honorable discharge after 7 years.  However, this did not happen.  He adds that he recently applied for medical assistance and found out his discharge had not been changed.

3.  The applicant provides no additional documentary 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's military service records show he enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 20 August 1970.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).

3.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty on 20 August 1970 and was honorably discharged on 23 May 1971, in accordance with the provisions of Army Regulation 635-200 with a Separation Program Number (SPN) of “313,” for convenience of the Government.  This document also shows at the time of his discharge, the applicant had completed 0 years, 9 months, and 3 days net active service this period.

4.  The applicant's military service records show he reenlisted in the RA for a period of 3 years on 24 May 1971.  At the time, the applicant was assigned overseas to U.S. Army Europe (USAREUR).  The applicant served in Germany from 15 March 1971 through 10 March 1973.

5.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCJM), dated 13 October 1971.  This document shows the commanding officer imposed non-judicial punishment against the applicant for absenting himself from his unit from on or about 0715 hours, on 8 October 1971, and remaining absent until on or about 1645 hours, on 8 October 1971.  The punishment imposed was a forfeiture of $20.00 per month for 1 month and 14 days of extra duty.

6.  The applicant's military service records contain a DA Form 2627-1, dated 
1 November 1971.  This document shows that non-judicial punishment was imposed by the commanding officer against the applicant for, on or about 0700 hours, on 28 October 1971, without authority, absenting himself from his place of duty; to wit:  Battery A Tactical Site for Kitchen Police duty, and remaining absent until on or about 0800 hours, on 29 October 1971; in violation of Article 86, UCMJ.  The punishment imposed was reduction to private first class (PFC)/pay grade E-3 and 14 days of extra duty.

7.  The applicant’s military service records contain a Headquarters, Battery A,
6th Battalion, 562nd Air Defense Artillery (Germany), Certificate, dated
10 November 1971.  This document shows the applicant’s commander certified that the applicant should be barred from reenlistment based on violation of Article 86, UCMJ, on 13 October 1971 and on 5 November 1971; being late for extra duty on 15 October 1971; requiring constant supervision to maintain a military appearance; and verbally requesting separation under Army Regulation 635-212:
     a.  On 10 November 1971, the commander notified the applicant of his recommendation to bar him from reenlistment and advised the applicant of his right to make a statement in his own behalf.

     b.  On 10 November 1971, the applicant acknowledged he had been furnished a copy of the commanding officer’s certificate to bar him from reenlistment, had been counseled and advised of the basis for the recommended action, and advised of the type of discharge he may receive as a result of the action.  The applicant offered no additional statement in his own behalf.

     c.  On 16 November 1971, the lieutenant colonel serving as Commander,
6th Battalion 562nd Air Defense Artillery (Germany), approved the Bar to Reenlistment against the applicant under the provisions of Army Regulation
601-280, Chapter 1, Section VIII.

8.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 29 December 1971.  This document shows that non-judicial punishment was imposed by the commanding officer against the applicant for, on or about
1200 hours, 23 December 1971, without authority, absenting himself from his designated place of duty; to wit:  Battery A, 6th Battalion, 562nd Air Defense Artillery (Germany), by climbing over the fence of the Battery A Tactical Site and remaining absent until on or about 0700 hours, on 27 December 1971; in violation of Article 86, UCMJ.  The punishment imposed was reduction to private (PVT)/pay grade E-2 and a forfeiture of $63.00 per month for 1 month.

9.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 4 February 1972.  This document shows that non-judicial punishment was imposed by the commanding officer against the applicant for, on or about
0700 hours, on 4 February 1972, without authority, failing to go at the time prescribed to his appointed place o duty; to wit:  Alert at Headquarters and Headquarters Battery, 6th Battalion, 62nd Artillery (Germany); in violation of Article 86, UCMJ.  The punishment imposed was a forfeiture of $50.00 per month for 1 month, reduction to private (PVT)/pay grade E-1, and 7 days of extra duty.

10.  The applicant’s records are absent a copy of his administrative separation packet.

11.  The applicant’s military service records contain a copy of Headquarters, U.S. Army Personnel Center, Fort Dix, New Jersey, Special Orders Number 103, dated 12 April 1973, that promulgated the applicant’s undesirable discharge under the provisions of Army Regulation 635-212 and SPN “386” with issuance of a DD Form 258A (Undesirable Discharge Certificate), effective 12 April 1972.

12.  The applicant's military service records contain a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212, SPN “386” with service characterized as under conditions other than honorable and the issuance of a DD Form 258A (Undesirable Discharge Certificate), effective
12 April 1972.  At that time, the applicant was credited with completing 0 years, 10 months, and 19 days of net service this period; 0 years, 9 months, and 4 days other service; and 1 year, 7 months, and 23 days of total active service.

13.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
  
15.  Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that Soldiers discharged for frequent incidents of a discreditable nature based on a pattern of shirking will be furnished an under other than honorable conditions discharge certificate, except that an honorable or general discharge certificate may be awarded by the separation authority.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.   Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN."  




17.  Army Regulation 635-5-1 (Separation Program Number (SPN) Codes), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from 
active duty, and the SPN codes to be entered on the DD Form 214.  It identifies the SPN code of “386” as the appropriate code to assign enlisted Soldiers discharged for unfitness based on an established pattern of shirking.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  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.

20.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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, in effect, that his under other than honorable conditions discharge should be upgraded to an honorable discharge because he was told his discharge would be automatically upgraded to that of honorable after 7 years.  However, this did not happen and he now wants to apply for government medical benefits.
2.  The evidence of record confirms that the applicant’s honorable service during the period 20 August 1970 through 23 May 1971 is accurately and properly documented in his military service records.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, for the period of service under review (i.e., 24 May 1971 through
12 April 1972), the "presumption of regularity" is based on Army Regulation
635-212, which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  In this regard, the applicant fails to rebut this presumption.  Thus, in the absence of evidence to the contrary, the presumption is that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  There is no U.S. Army regulation or policy that automatically changes the character of service of a former service member's discharge.  In addition, there is no evidence of record, and the applicant provides insufficient evidence to show he was advised that his discharge under other than honorable conditions would be changed to an honorable discharge 7 years after his discharge from the U.S. Army.  Therefore, the evidence of record fails to substantiate the applicant's claim that his discharge under other than honorable conditions would be changed to an honorable discharge 7 years after his discharge from the U.S. Army.
In addition, the U.S. Army does not upgrade a former Soldier's discharge solely for the purpose of making the applicant eligible for employment or government benefits.

5.  During the period of service under review (i.e., 24 May 1971 through 12 April 1972), the applicant’s records show that a Bar to Reenlistment was imposed against the applicant based on his violation of Article 86 of the UCMJ on
2 occasions, being late for extra duty, requiring constant supervision to maintain a military appearance, and verbally requesting separation under Army Regulation 635-212.  In fact, the applicant’s records document 4 instances of non-judicial punishment under Article 15, UCMJ, that included being absent from his unit without authority, absent from his place of duty without authority, absent without leave for a period of 4 days from 23 December 1971 through 27 December 1971, and failure to go at the time prescribed to his appointed place of duty.  The evidence of record clearly shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to an honorable discharge.  Moreover, the evidence of record shows that the applicant's overall quality of service during the period of service under review was not satisfactory. Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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.




      _______ _X  _______   ___
               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)                                         AR20080014710



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ABCMR Record of Proceedings (cont)                                         AR20080014710



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