IN THE CASE OF:	

		BOARD DATE:	13 August 2009  

		DOCKET NUMBER:  AR20080019867 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant essentially states that his discharge should be upgraded because he went through the proper procedures to receive a proper discharge.

3.  The applicant provides no additional evidence 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 1 March 1977.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  However, prior to completing advanced individual training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 
1645 hours, 31 May 1977 and remaining so absent until on or about 2100 hours, 31 May 1977.  His punishment consisted of forfeiture of $50.00, restriction for 
7 days and extra duty for 7 days.  He was then reassigned to Fort Ord, California for what would be his first and only permanent duty station.

3.  Between 8 August 1977 and 19 July 1978, the applicant accepted NJP under Article 15 of the UCMJ on five occasions.  His offenses included absenting himself without authority from his unit on four occasions for a total of 15 days, failing to go at the time prescribed to his appointed place of duty on two occasions, and missing movement on two occasions.  Collectively, his punishment consisted of forfeiture of $420.00, detention of $600.00, restriction for 14 days, and extra duty for 61 days.

4.  Subsequent to the aforementioned NJP, the applicant went absent without leave from 31 August 1978 through 5 September 1978, from 18 through 
20 September 1978, and from 27 September 1978 through 6 October 1978.  There is no record of NJP for these offenses.

5.  Although the complete facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records do contain a properly constituted DD Form 214 (Report of Separation from Active Duty).  This document shows the applicant was discharged on 6 October 1978 under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 14.  The Separation Program Designator code of "JKJ" listed on his DD Form 214 shows that his discharge was due to misconduct due to an established pattern of shirking.  This document also essentially shows he was issued a discharge under other than honorable conditions.  

6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense to include abuse of illegal drugs, convictions by civil authorities, and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted. 

8.  Army Regulation 635-200, 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.

9.  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.

10.  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 discharge under other than honorable conditions should be upgraded to a general discharge.

2.  The applicant's contention that his discharge should be upgraded because he went through the proper procedures to receive a proper discharge was noted.  However, the applicant provided no evidence to support his contention, and his contention by itself does not begin to approach the threshold of proving, by a preponderance of the evidence, that an error or injustice occurred when he was discharged for misconduct.  

3.  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.

4.  Although the complete facts and circumstances pertaining to the applicant’s discharge are not in his military records, it is clear that the applicant was discharged under other than honorable conditions under the provisions of Chapter 14, Army Regulation 635-200 for misconduct due to an established pattern of shirking.  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.  Based on his record of indiscipline during such a brief period of military service, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a 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.




      _______ _   _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)                                         AR20080019867



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ABCMR Record of Proceedings (cont)                                         AR20080019867



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