IN THE CASE OF:	  

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080016220 


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, upgrade of the character of service of his discharge.

2.  The applicant states, in effect, that he served honorably on active duty from 9 January 1969 through 3 November 1975; however, his active duty service from 4 November 1975 through 10 November 1981 was characterized as under other than honorable conditions.  He also states that he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge and appeared before an ADRB Travel Panel on 2 November 1982 at the American Red Cross in Dallas, Texas.  The applicant states he explained that Army regulations state that the character of service must be "one or the other" and that "a Soldier cannot be on active duty under dishonorable conditions."  He further states that he received a transcript of the ADRB hearing and was told he would receive the official findings of the Board within 90 days.  The applicant adds that he never received the findings of the ADRB and the Department of Veterans Affairs (VA) has not been able to obtain a copy either.  The applicant concludes by stating he requests of copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) showing upgrade of the character of service of his discharge.

3.  The applicant provides a self-authored statement, undated.


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 personnel records show he was inducted into the Army of the United States (AUS) on 9 January 1969.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  The applicant was assigned overseas and served in the U.S. Army Pacific in the Republic of Vietnam from 15 June 1969 to 15 June 1970.

3.  The applicant's military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was inducted on 9 January 1969 and honorably discharged on 3 November 1969 for the purpose of immediate enlistment in the Regular Army (RA).  At the time he had completed 9 months and 25 days of net active service during this period and 9 months and 25 days of total active service.  He was also credited with 4 months and 20 days of foreign service.

4.  The applicant’s military personnel records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows he enlisted in the RA for a period of 6 years on 4 November 1969.  Item 49 (Prior Service), in pertinent part, shows the applicant served honorably in the AUS from 9 January 1969 through 3 November 1969.

5.  The applicant's military personnel records contain a DD Form 214 (Report of Separation from Active Duty) that shows he entered a period of active duty on 4 November 1969 and was honorably discharged on 20 August 1974 for the purpose of immediate reenlistment in the RA.  At the time he had completed 4 years, 9 months, and 17 days of net active service during this period; 9 months and 25 days of prior active service; and 5 years, 7 months, and 12 days of total active service.  He was also credited with 2 years, 11 months, and 29 days of foreign service.
6.  The applicant’s military personnel records contain a DD Form 4 that shows he reenlisted in the RA for a period of 6 years on 21 August 1974.  Item 49, in pertinent part, shows the applicant served honorably in the RA from 4 November 1969 through 20 August 1974.

7.  The applicant’s military personnel records contain a DA Form 1695 (Oath of Extension of Enlistment), dated 27 June 1979, that shows he extended his 6-year enlistment of 21 August 1974 in the RA a period of 24 months and established his expiration term of service as 20 August 1982.

8.  The applicant's military personnel records contain a DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]), dated 27 September 1976.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for failing to go at the time prescribed to his appointed place of duty without authority on or about 1800 hours, 20 September 1976, to wit:  remedial physical training formation, in violation of Article 86, UCMJ; for having received a lawful command from his superior commissioned officer to "be at-ease," did willfully disobey the same at Warner Barracks, Bamberg, Germany, on or about 0640 hours, 20 September 1976, in violation of Article 90, UCMJ; and for being disrespectful in language toward his superior noncommissioned officer who was then in the execution of his office by saying to him he didn’t care "what the ____ you say" or words to that effect in violation of Article 91, UCMJ.  The punishment imposed was reduction to the grade of E-4 (suspended for 180 days), forfeiture of $230.00 pay for 1 month, and 30 days of extra duty.

9.  The applicant's military personnel records contain a DA Form 2627, dated 22 June 1977, that shows that nonjudicial punishment was imposed by the battalion commander against the applicant for failing to go at the time prescribed to his appointed place of duty without authority on or about 1 April 1977, to wit:  physical training formation, in violation of Article 86, UCMJ.  The punishment imposed was reduction to the grade of E-4 (suspended for 4 months) and forfeiture of $100.00 pay per month for 2 months.

10.  The applicant’s military personnel records contain a "Corrected Copy" of Headquarters, 3d Brigade, 1st Armored Division, Special Court-Martial Order Number 1, dated 7 January 1980.  This document shows the applicant was charged with violation of Article 92, UCMJ, with the specification that, on or about 0730 hours, 1 October 1979, he was derelict in the performance of his duties in that he negligently failed to remove the upper A-frame of A-42, a Gamma Goat of the 3d of the 35th Armor, and to remove the grease and oil from the inner hull where the vehicle was to be welded, as it was his duty to do.  The applicant entered a plea of not guilty to the charge and specification and the applicant was found guilty of the charge and the specification.  On 11 December 1979, the military judge sentenced the applicant to be admonished to use more sound judgment to avoid dereliction in the future.  (No previous convictions considered.)  On 7 January 1980, the convening authority approved the sentence and ordered the sentence duly executed.

11.  The applicant’s military personnel records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 8 January 1980.  This document shows that the company commander documented his recommendation that the applicant be barred from reenlistment in the U.S. Army.  The reasons cited by the commander included, in pertinent part, a special court-martial approved on 7 January 1980, imposition of nonjudicial punishment against the applicant on two occasions, and a record of non-payment of just debts.  The applicant submitted a statement of rebuttal to the proposed bar to reenlistment that was forwarded through the applicant’s chain of command, along with the proposed bar to reenlistment.  On 21 March 1980, the Commanding General, 1st Armored Division, approved the bar to reenlistment and notified the applicant of his right to appeal imposition of the bar to reenlistment.  There is no evidence that the applicant submitted an appeal to the bar to reenlistment.

12.  The applicant’s military personnel records contain a copy of Headquarters, 1st Infantry Division Forward, Special Court-Martial Order Number 42, dated 1 July 1981.  This document shows the following:

	a.  The applicant was charged with charge I, violation of Article 92, UCMJ, with the specification that, on or about 0400 hours, 21 December 1980, he did violate a lawful general regulation by possessing a privately-owned firearm that had not been registered in accordance with U.S. Army Europe Regulation 190-6.  He was also charged with charge II, violation of Article 134, UCMJ, with specification 1 that, at the Candlelight Noncommissioned Officer-Enlisted Members’ (NCO-EM) Club, Patch Barracks, a military installation located at Vaihingen, Germany, a place outside the territorial limits of the U.S., on or about 0400 hours, 21 December 1980, he was drunk and disorderly; and specification 2 that, at the Candlelight NCO-EM Club, Patch Barracks, a military installation located at Vaihingen, Germany, a place outside the territorial limits of the U.S., on or about 0400 hours, 21 December 1980, he did unlawfully carry a concealed weapon, to wit:  a .38 caliber revolver.  He was also charged with additional charge I, violation of Article 91, UCMJ, with the specification that on or about 0655 hours, 15 February 1981, he was disrespectful in language towards his superior noncommissioned officer, on active duty with the U.S. Army, who was then in the execution of his office, by saying to him, "your [sic] the dumbest person I know," or words to that affect.  He was also charged with additional charge II, violation of Article 92, UCMJ, with the specification that, having knowledge of a lawful order issued by Commander George L. B____, on active duty with the United States Navy, to identify himself by producing his identification card, an order which it was his duty to obey, did, at Panzer Kaserne, Boeblingen, Germany, on or about 1330 hours, 14 February 1981, fail to obey the same.  He was further charged with a second additional charge, violation of Article 111, UCMJ, with the specification that, at Stuttgart-Killesberg, Federal Republic of Germany, a place outside the territorial limits of the U.S., on or about 0250 hours, 15 February 1981, at the intersection of Am Kraeherwald and Feuerbacherwald, operate a vehicle, to wit:  a passenger car in a reckless manner by driving erratically and weaving all over the roadway.

	b.  The applicant entered a plea of guilty to charge I and its specification, not guilty to charge II and both specifications, not guilty to additional charge I and its specification, not guilty to additional charge II and its specification, and not guilty to the second additional charge and its specification.

	c.  The applicant was found guilty of charge I and its specification, not guilty of charge II and specifications 1 and 2 of charge II, guilty of additional charge I and its specification, guilty of additional charge II and its specification, and not guilty of the second additional charge and its specification.

	d.  the applicant’s sentence was adjudged on 11 April 1981.  His sentence was to be discharged from the service with a bad conduct discharge (one previous conviction considered).

	e.  On 1 July 1981, the convening authority approved the sentence, but the bad conduct discharge was changed to the lesser punishment of confinement at hard labor for 4 months.

	f.  This document also shows the applicant acknowledged that the court-martial order was read to him on 20 July 1981 by a superior noncommissioned officer serving as the assistant adjutant assigned to the 77th Military Police Detachment and that the applicant was informed his minimum release date was 10 October 1981 with 20 days of good conduct time.

13.  The applicant’s military personnel records are absent a complete copy of his administrative separation packet.  However, available records show that on 12 September 1981 the applicant was psychiatrically cleared for any appropriate administrative action.  Records also show, on 16 September 1981, the applicant was informed of pending discharge proceedings, his rights were explained to him, and he acknowledged an understanding.

	a.  On 21 September 1981, the applicant’s unit commander recommended the applicant’s discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14 (Misconduct), based on frequent incidents of a discreditable nature with civil or military authorities.  The applicant’s battalion commander also recommended approval of the applicant’s separation based on misconduct.

	b.  On 22 September 1981, having been advised by counsel of the basis for the contemplated action, the applicant requested a personal appearance before a Board of Officers with counsel.

	c.  On 15 October 1981, the applicant appeared with counsel before the Board of Officers and the Board recommended discharge for misconduct with an Under Other Than Honorable Discharge Certificate.

	d.  On 4 November 1981, the separation authority approved discharge of the applicant under the provisions of Army Regulation 635-200, paragraph 
14-33b(1), and directed the applicant be furnished an Under Other Than Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 10 November 1981.

14.  The DD Form 214 issued to the applicant on the date of his separation confirms that the applicant entered this period of active duty on 21 August 1974 and he was discharged on 10 November 1981 under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 
14-33b(1), based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  Item 26 (Separation Code) contains the entry "JKA" and item 27 (Reenlistment Code) contains the entry "RE-3B."  At the time of his discharge the applicant had completed 6 years, 11 months, and 9 days of net active service during the period of service under review; 5 years, 7 months, and 12 days of total prior active service; and 4 years and 11 months of foreign service.  The DD Form 214 also shows that the applicant had 101 days of time lost from 11 April 1981 through 20 July 1981.

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

16.  The applicant’s military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 7 December 1981, that shows he requested upgrade of his under other than honorable conditions discharge to an honorable discharge and a change to his reenlistment code.

	a.  The ADRB notified the applicant he was scheduled to appear before the ADRB Travel Panel at the American Red Cross in Dallas, Texas, on 1 November 1982 and the applicant did appear before the ADRB Travel Panel.

	b.  On 26 November 1982, the ADRB, after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge should not be changed, the discharge was proper and equitable with respect to the reason and characterization of service, and the ADRB panel voted unanimously to deny relief.

	c.  On 26 November 1982, the ADRB provided the applicant unofficial notification of the Board’s decision.

	d.  On 27 January 1983, the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, on behalf of the Secretary of the Army, advised the applicant that his request for a change in the type and nature of his discharge was denied.  The applicant was also advised that, although his cased was denied by the ADRB, he may apply to the ABCMR.

17.  The applicant’s military service records contain a DD Form 215, dated 7 October 1985, that shows item 27 of his DD Form 214 with an effective date of 10 November 1981 was corrected to show "RE-3, RE-3B, RE-3C."

18.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  This regulation states, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge or an honorable discharge, if such is merited by the Soldier's overall record.

19.  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.

20.  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.

21.  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.  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 because he served honorably on active duty from 9 January 1969 to 3 November 1975.  His active duty service from 4 November 1975 through 10 November 1981 was characterized as under other than honorable conditions and was reviewed and upgraded by the ADRB; however, he never received official notification of the ADRB’s final determination.

2.  The evidence of record shows that the applicant initially served on active duty in the AUS from 9 June 1969 through 3 November 1969 and that this period of honorable active duty service is documented in his military personnel records in the form of a DD Form 214 with an effective date of 3 November 1969.

3.  The evidence of record also shows that the applicant served on active duty in the RA from 4 November 1969 through 20 August 1974 and that this period of honorable active duty service is documented in his military personnel records in the form of a DD Form 214 with an effective date of 20 August 1974.

4.  With respect to the applicant’s period of active duty in the RA from 21 August 1974 through 10 November 1981, the period of service that is currently under review, the evidence of record confirms the following:

	a.  nonjudical punishment under Article 15 was imposed against the applicant on two occasions during this period of service;

	b.  the applicant’s trial by special court-martial, approved on 7 January 1980, was warranted by the gravity of the offense for which he was charged.  In addition, conviction and sentence were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process;

	c.  a Bar to Reenlistment was imposed against the applicant based on, in pertinent part, a special court-martial approved on 7 January 1980, imposition of nonjudicial punishment against the applicant on two occasions, and a record of non-payment of just debts;

	d.  the applicant’s trial by special court-martial, approved on 1 July 1981, was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and sentence were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process;

	e.  the applicant was properly and equitably discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b(1), based on frequent involvement in incidents of a discreditable nature with civil or military authorities 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; and

	f.  the ADRB determined the applicant’s discharge should not be changed, the discharge was proper and equitable with respect to the reason and characterization of service, and the ADRB voted unanimously to deny relief.

5.  In view of all of the foregoing, it is concluded that the applicant’s record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly indicates that the applicant's overall quality of service during the period 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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board requests that the ABCMR Case Management Support Division-St. Louis provide the individual concerned a complete copy of the findings of the ADRB; his DD Form 214 with an effective date of 10 November 1981; and DD Form 215, dated 7 October 1985.



      ___________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)                                         AR20080016220



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ABCMR Record of Proceedings (cont)                                         AR20080016220



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