IN THE CASE OF:	  

		BOARD DATE:	        19 May 2009

		DOCKET NUMBER:  AR20090001715 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect, he believes the complete set of circumstances that led to his discharge were never reviewed.

	a.  The applicant states he had 30 days left on his overseas tour in Germany when he found his platoon sergeant with his wife.  He was reassigned to Fort Belvoir, Virginia; his wife moved to Cumberland, Maryland; and they divorced.

	b.  The applicant states he was assigned to the 11th Engineer Battalion, Fort Belvoir, Virginia, with the same men that he served with in Germany, including his former platoon sergeant, so all the problems he had in Germany came with him.  He adds that his ex-wife married his former platoon sergeant.  He also states that when he would go home to Cumberland, Maryland, he would be in a bar and see his ex-wife with his former platoon sergeant which contributed to his continued drinking and caused him to go absent without leave (AWOL).

	c.  The applicant states he had two Article 15s for being AWOL and he was discharged on 17 January 1983.  He also states that, being young, he made some bad choices that were driven by emotion and these have caused problems throughout his life.

	d.  The applicant concludes by stating he has not been out in a bar drinking for 20 years and he would greatly appreciate a compassionate decision to change his character of service so he will be able to start a new life and be eligible for Department of Veteran Affairs (VA) medical benefits.

3.  The applicant provides a self-authored statement, dated 5 December 2008; his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 17 January 1983; his DD Form 794A (Discharge Under Other Than Honorable Conditions Certificate), dated 17 January 1983; and a U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, letter, dated 15 June 1984.

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 for a period of 3 years on 27 February 1974.  Records show the applicant’s date of birth is __ April 1946.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 51C (Structure Specialist).  The applicant extended his 
3-year enlistment for a period of 6 months to 3 years and 6 months.

3.  The applicant's military personnel records contain a DD Form 214 (Report of Separation from Active Duty) that shows he entered this period of active duty on 27 February 1974 and was honorably discharged on 9 August 1977 in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-10a(2), with the separation program designator (SPD) code "KHC."  At the time of his discharge the applicant had completed 3 years, 5 months, and 13 days of net active service this period.

4.  On 10 August 1977, the applicant reenlisted in the RA for a period of 3 years.  He then extended his 3-year enlistment for a period of 9 months to 3 years and 9 months.  The applicant’s records show that he served overseas in U.S. Army Europe in Germany from 25 March 1978 through 11 April 1981.

5.  The applicant’s military personnel records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 13 June 1979.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for absenting himself from his unit without authority, to wit:  Company B, 94th Engineer Combat Battalion (Heavy), located at Darmstadt, Federal Republic of Germany (FRG), on or about 0715 hours, 7 June 1979, and for remaining so absent until on or about 1020 hours, 8 June 1979, in violation of Article 86, UCMJ.  His punishment consisted of forfeiture of $250.00 per month for a period of 2 months and reduction to the grade of E-4 (suspended for a period of 180 days).

6.  The applicant’s military personnel records contain a DA Form 2627, dated 4 August 1980.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for operating a vehicle, to wit:  a passenger car, while drunk on county road L-3303 near Darmstadt Water Works District, Darmstadt-Griesheim, FRG, on or about 2150 hours, 20 June 1980, in violation of Article 111, UCMJ.  His punishment consisted of forfeiture of $250.00 for 2 months and reduction to the grade of E-4 (suspended for 180 days).

7.  On 11 March 1981, the applicant reenlisted in the RA for a period of 3 years.

8.  The applicant’s military personnel records contain a DA Form 2627, dated 10 April 1981.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant in that he was drunk in uniform in a public place, to wit:  in front of Building 4248, Ernst Ludwig Kaserne, Darmstadt, FRG, on or about 9 April 1981, in violation of Article 86, UCMJ.  His punishment consisted of reduction to the grade of specialist four (SP4)/pay grade E-4.

9.  The applicant’s military personnel records contain a DA Form 2627, dated 28 June 1982.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for absenting himself from his unit without authority, to wit:  Company D, 11th Engineer Battalion, located at Fort Belvoir, Virginia, on or about 18 March 1982 and remaining so absent until on or about 19 March 1982, in violation of Article 86, UCMJ; and for absenting himself from his unit without authority, to wit:  Company D, 11th Engineer Battalion, located at Fort Belvoir, Virginia, on or about 1 April 1982, and remaining so absent until on or about 6 April 1982, in violation of Article 86, UCMJ; and for failing to go at the time prescribed to his appointed place of duty without authority, to wit:  company formation located adjacent to Building T-2275, on or about 0730 hours, 9 April 1982, in violation of Article 86, UCMJ.  His punishment consisted of reduction to E-4, forfeiture of $425.00 per month for 2 months, 45 days extra duty, and 45 days restriction to the mess hall, place of duty, place of worship, and billets.

10.  The applicant’s military personnel records contain a DA Form 4187 (Personnel Action), dated 26 June 1982, that shows the applicant’s duty status was changed from present for duty (PDY) to AWOL effective 0630 hours, 22 June 1982.

11.  The applicant’s military personnel records contain a DA Form 4187, dated 23 July 1982, that shows the applicant’s duty status was changed from AWOL to dropped from the rolls (DFR) effective 0630 hours, 22 July 1982.

12.  The applicant’s military personnel records contain a DA Form 4187, dated 23 September 1982, that shows the applicant’s duty status was changed from DFR to PDY effective 1120 hours, 18 September 1982.  Section IV (Remarks), in pertinent part, shows the applicant surrendered to military authorities at Patrick Air Force Base, Florida, at 1120 hours, 18 September 1982; was confined; transported to Orlando, Florida, on 20 September 1982; and issued a Transportation Request to report to the U.S. Army Personnel Control Facility, Headquarters Command, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina.

13.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 21 (Time Lost) and item 28 (Item Continuation), in pertinent part, show the applicant was AWOL for 1 day on 7 June 1979, AWOL for 19 days from 18 March 1982 through 5 April 1982, AWOL for 10 days from 16 April 1982 through 25 April 1982, and AWOL for 88 days from 22 June 1982 through 17 September 1982.

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

15.  The applicant's military personnel records contain a DD Form 214 that shows he entered this period of active duty on 10 August 1977 and was discharged on 17 January 1983 with a character of service of under other than honorable conditions in accordance with the provisions of Army Regulation 
635-200, chapter 10, by reason of administrative discharge - conduct triable by court-martial with the SPD code "JFS."  This document also shows that at the time of his discharge the applicant had completed 5 years, 1 month, and 13 days of net active service this period and 3 years, 5 months, and 13 days of total prior active service.  Item 18 (Remarks), in pertinent part, shows the applicant had an immediate reenlistment this period from 10 August 1977 through 10 March 1981.  The DD Form 214 also shows that the applicant had time lost under Title 10, U.S. Code, section 972, on 7 June 1979, 18 March 1982 through 5 April 1982, 16 April 1982 through 25 April 1982, and 22 June 1982 through 17 September 1982.

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

17.  On 6 October 1983, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was inequitable because it was based on the last 18 months of service.

18.  The applicant's military personnel records contain a copy of a U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, letter, dated 15 June 1984, with enclosures.  This documentation shows that on 29 February 1984 the ADRB considered the applicant’s military records and all other available evidence and determined that the applicant was properly and equitably discharged.  The Secretary of the Army directed that the applicant be advised his request for a change in the character and/or reason for his discharge was denied.  Accordingly, the applicant was advised of the ADRB’s decision.

19.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JFS" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10, based on conduct triable by court-martial.

20.  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 10 of this 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.

21.  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.

22.  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.

23.  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, his discharge should be upgraded because he was young, he made some bad choices that were driven by emotion, and he believes the complete set of circumstances that led to his discharge were never reviewed.

2.  The evidence of record shows that the applicant entered active duty in the RA on 27 February 1974 and was honorably discharged on 9 August 1977.  The evidence of record also shows that this period of honorable active duty service is documented in the applicant’s military service records by a DD Form 214 with an effective date of 9 August 1977.

3.  The evidence of record shows the applicant was 35 years of age when he went AWOL on two separate occasions in 1982 and he was 36 years of age when he went AWOL on 22 June 1982 and remained in an AWOL status for a period of 88 days which resulted in his being DFR of the Army.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age with similar personal situations who successfully completed their military service during this period.

4.  The evidence of record shows the ADRB considered the applicant’s military records and all other available evidence, determined the applicant was properly and equitably discharged, and that the Secretary of the Army directed that the applicant be advised his request for a change in the character and/or reason for his discharge was denied.  Thus, the evidence of record refutes the applicant’s contention that the complete set of circumstances that led to his discharge were never reviewed.

5.  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.

6.  The evidence of record shows that nonjudicial punishment was imposed against the applicant on four separate occasions during the period of service under review (i.e., 10 August 1977 through 17 January 1983).  In addition, the evidence of record shows the applicant had a total of 188 days (i.e., more than 6 months) of time lost during the period of service under review.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review 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 clearly 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.

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

8.  The applicant's desire to attain eligibility for VA medical benefits is understandable.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for government benefits.

9.  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)                                         AR20090001715



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ABCMR Record of Proceedings (cont)                                         AR20090001715



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