IN THE CASE OF:	  

		BOARD DATE:	        19 May 2009

		DOCKET NUMBER:  AR20090000752 


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 his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, he was young and dumb when he got into drugs while stationed in Germany and this led to him being discharged from the Army.

     a.  The applicant states he was guilty of driving under the influence about
10 years ago, but he has not been in trouble since then.  He adds that he does not drink or use drugs, he is a father and grandfather, works full-time, and is now a good citizen.

     b.  The applicant concludes by stating he requests an upgrade of his discharge so that he may qualify for enrollment in the Department of Veterans Affairs (VA) healthcare system and also qualify for burial in a National Cemetery.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated
27 October 2008; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 24 May 1971; a letter written by J____ J. J___, undated; and a letter written by P_______ J___ (G____), dated 30 November 2008.



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 enlisted in the Regular Army (RA) and entered active duty on 3 October 1969 for a period of 3 years.  Records show his date of birth is 1 November 1950.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 45B (Small Arms Repairman).  

3.  The applicant's military personnel records contain a copy of, 43rd Heavy Equipment Maintenance Company, 81st Maintenance Battalion (Germany), Unit Order Number 81, dated 15 September 1970.  This order shows that the applicant was ordered to forfeit $35.00 for a period of one month and reduced to the grade of private (PV2)/E-2, effective 15 September 1970, under the authority of Article 15, Uniform Code of Military Justice (UCMJ), and Army Regulation     27-10 (Military Justice), based on misconduct.

4.  The applicant's military personnel records contain a copy of, 43rd Heavy Equipment Maintenance Company, 81st Maintenance Battalion (Germany), Unit Order Number 26, dated 6 April 1971.  This order shows that the applicant was reduced to the rank of PV2, effective 6 April 1971, under the authority of Article 15, UCMJ, and Army Regulation 27-10, based on misconduct.

5.  The applicant’s military personnel records are absent a copy of his administrative separation packet.

6.  The applicant’s military personnel records contain a Standard Form (SF) 89 (Report of Medical History), undated, that was completed by the applicant at the time of his medical examination prior to his separation from active duty.  In response to Item 20 (Have You Ever Had or Have You Now), “Any Drug or 
Narcotic Habit” the applicant placed a checkmark in the “No” column.   The
SF 89 also contains, in pertinent part, the statement “Warning:  A false or dishonest answer to any of the questions on this form may be punished by fine or imprisonment (18 USC 1001 [Title 18, U.S. Code, section 1001]).  I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge.  I authorize any of the doctors, hospitals, or clinics mentioned above to furnish the Government a complete transcript of my medical record for purposes of processing my application for this employment or service.”  The SF 89 shows the applicant placed his signature on the form immediately following this statement.

7.  The applicant’s military personnel records contain an SF 88 (Report of Medical Examination), dated 13 April 1971, that was completed by the attending physician at the time of the applicant’s separation medical examination.  This document shows in Item 77 (Examinee) the physician entered an “X” in the “Is Qualified For” block and also entered “212 Discharge:  Psych. Consult:  Recommends that this individual be administratively separated from the Military under Provisions AR [Army Regulation] 635-212 [Personnel Separations – Discharge – Unfitness and Unsuitability].”  This document also shows that the attending physician and reviewing officer both placed their signatures on the document.

8.  The applicant's military personnel records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions) that shows a flagging action against the applicant was initiated on 22 February 1971.  This document also shows the applicant was transferred to the U.S. Army Transfer Station, Fort Dix, New Jersey, on 20 May 1971, for administrative discharge.

9.  The applicant's military personnel records contain a copy of Headquarters,
1st Support Brigade (Germany), Special Orders Number 117, dated 20 May 1971; and Headquarters, 1st Support Brigade (Germany), Special Orders Number 118, dated 21 May 1971.  These orders show the applicant was reassigned from the 43rd Heavy Equipment Maintenance Company,
81st Maintenance Battalion (Germany) to the U.S. Army Transfer Station, Fort Dix, with a reporting date of 23 May 1971.

10.  The applicant's military personnel records contain a copy of Headquarters,
U.S. Army Personnel Center, Fort Dix, Special Orders Number 144, dated
24 May 1971, that show the applicant was discharged on 24 May 1971, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), with Separation Program Number (SPN) 246 [for the good of the service], and issued a DD Form 258A (Undesirable Discharge Certificate).
11.  The applicant's military personnel records contain his DD Form 214 that shows he entered active duty this period on 3 October 1969 and was discharged on 24 May 1971, under conditions other than honorable in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the Service with SPN 246, and issued a DD Form 258A.  At the time he had completed
1 year, 7 months, and 22 days of net active service during this period.

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

13.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

14.  In support of his application, the applicant provides the following documents.

     a.  A letter written by J____ J. J___ (presumably the applicant’s brother) that shows he worked with the applicant a couple of years ago, they have not seen each other for 4 or 5 years, and that the applicant is now helping his daughter settle in West Virginia.  Mr. J___ provides his recommendation of the applicant and concludes by stating “he will be an asset to the community.”

     b.  A letter written by P_______ J___ (G____), the applicant’s daughter, who states she started to get to know her father in the summer of 1990 and has never known her father to do any type of illegal drugs or have any problems with alcohol in the past 10 years.  She states her father is of good character, responsible, and a hard worker.  Ms. G____ concludes by stating she has enjoyed the relationship they have built together as father and daughter.

15.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

16.  Army Regulation 635-5-1 (SPN Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the Service in lieu of court-martial.

17.  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.

18.  Army Regulation 15-185 (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 undesirable discharge should be upgraded because he was young when he got into drugs while stationed in Germany and this led to him being discharged from the Army.  He also contends that he is now a responsible family man, a good citizen, and upgrade of his discharge may qualify him for veterans benefits.

2.  Records show that the applicant was 20 years of age at the time of his acts of misconduct and offenses that led to his administrative discharge.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

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 credible evidence to rebut the presumption.  The applicant has failed to provide such evidence.  Thus, in the absence of evidence to the contrary, the presumption is 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.  The evidence of record shows the applicant received nonjudicial punishment under Article 15, UCMJ, on at least two occasions during the period of service under review.  The evidence of record also shows that the applicant completed less than 20 months of his 3-year enlistment commitment when he was discharged for the good of the Service in lieu of court-martial.  Thus, the applicant’s record of service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the evidence of record shows 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, under honorable conditions discharge.

5.  The applicant's contentions regarding his post-service conduct and personal responsibility were carefully considered.  However, good post-service conduct and personal responsibility alone is not a basis for upgrading a discharge.  

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:

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)                                         AR20090000752



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ABCMR Record of Proceedings (cont)                                         AR20090000752



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