IN THE CASE OF:	  

		BOARD DATE:	        20 October 2009

		DOCKET NUMBER:  AR20090009061 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was wrongfully sent to the retraining brigade.

3.  The applicant provides no additional documentary evidence in support of his 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 enlisted in the Army National Guard of the United States (ARNGUS) on 19 September 1977.
3.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty for training (ADT) on 27 November 1977, he was awarded military occupational specialty (MOS) 76Y (Unit/Organization Supplyman).  At the completion of his training he was honorably released from ADT on 16 March 1978 and transferred back to his ARNGUS unit.  At the time he had completed 3 months and 20 days of net active service.

4.  On 29 January 1979, the applicant was involuntarily ordered to active duty for a period of 18 months and 14 days.

5.  On 2 August 1979, the applicant received nonjudicial punishment under Article15, Uniform Code of Military Justice (UCMJ), for being disrespectful in language toward his superior noncommissioned officer (NCO).  His punishment consisted of reduction to private (PV1)/E-1, forfeiture of $50.00 per month for one month, and seven days correctional custody.

6.  At a summary court-martial on 17 September 1979, the applicant was found guilty of wrongfully possessing marihuana; committing an assault on an individual by driving at him with his motor vehicle; and being disrespectful in deportment toward a superior NCO by refusing to listen, endeavoring to leave, and shouting at him.  He was sentenced to confinement at hard labor for 20 days and forfeiture of $200.00 per month for one month.  On 18 September 1979, the convening authority approved the sentence and ordered it duly executed with the applicant's confinement to be served at the U.S. Army Confinement Facility, Fort Sill, OK.

7.  On 3 January 1980, the applicant received nonjudicial punishment under Article15, UCMJ, for failing to obey a lawful order issued by a commissioned officer by missing bed check and for causing a breach of the peace by attempting to cut in the mess line in front of another Soldier.  His punishment consisted of a forfeiture of $75.00 per month for one month and 14 days of restriction and extra duty.

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  Item 21 (Time Lost) he was confined for 16 days from 17 September through 2 October 1979; and

   b.  Item 35 (Record of Assignments) that he was:

       (1)  in confinement at the Installation Detention Facility (IDF), Fort Sill, from 17 to 24 September 1979;

       (2)  in a confinement/trainee status while assigned to the 5th Unit, 3rd Battalion, U.S. Army Retraining Brigade (USARB), Fort Riley, KS, from
25 September to 2 October 1979;

       (3)  in a trainee status while assigned to the 6th Unit, 3rd Battalion, USARB, Fort Riley, from 3 to 10 October 1979;

       (4)  in a trainee status while assigned to the 4th Unit, 2nd Battalion, USARB, Fort Riley, from 11 October to 28 November 1979; and

       (5)  in a trainee status while assigned to the 3rd Unit, 2nd Battalion, USARB, Fort Riley, from 29 November 1979 to 30 January 1980.

9.  On 9 January 1980, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 14 (Misconduct), paragraph 14-33b(1), based on frequent incidents of a discreditable nature with civil or military authorities.  The commander stated that the reason for the proposed separation was the applicant's established pattern of shirking, a continued pattern of unacceptable behavior, disregard for military authority, and lack of desire for returning to duty.  The commander noted the applicant had received nonjudicial punishment on two occasions, he had one summary court-martial, he had been assigned to the retraining brigade, and that it was anticipated that further correctional intervention would be unsuccessful.  The applicant was also advised of his rights and acknowledged with his signature that he understood the reasons for his discharge, his rights, and the procedures involved in his separation processing.

10.  On 24 January 1980, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant waived consideration of his case by a board of officers, waived a personal appearance before an administrative separation board, waived consulting counsel and representation by counsel, and elected not to submit statements in his own behalf.

11.  On 29 January 1980, the battalion commander provided the separation authority in the applicant's case with a summary of the applicant's case and also conveyed the applicant's request to speak to the separation authority.

	a.	The battalion commander stated the applicant was convicted by summary court-martial prior to arriving at the USARB.  Based on repeated unsatisfactory cadre reports, the applicant was recycled on 29 November 1979.
   b.  He stated that during the period 29 November 1979 to 25 December 1979, the applicant was involved in at least ten separate incidents.  The battalion commander also summarized an additional eight incidents from 21 to 28 January 1980 in which the applicant continued to demonstrate his pattern of misconduct.

   c.  The battalion commander confirmed that he had explained to the applicant the three options available to him regarding his separation action.

   d.  He added that "I have advised [the applicant] that I do not believe that he is suitable to continue in the Retraining Brigade Program based on his repeated pattern of misconduct.  I have also advised him that I do not believe that [the separation authority] will favorably consider any action other than the pending discharge awaiting your signature."  The battalion commander concluded by stating, "[h]e persists in his desire to speak with you concerning his return to training."

12.  On 29 January 1980, the colonel serving as the separation authority in the applicant's case approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The separation authority directed the applicant be issued an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 31 January 1980.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 31 January 1980 in accordance with the provisions of Army Regulation 635-200, paragraph 14-33b(1), based on misconduct - frequent incidents of a discreditable nature with civil or military authorities, and his service characterized as under other than honorable conditions.  Based on the authority and reason for his separation, the applicant was issued the Separation Code "JKA" and assigned a Reenlistment Eligibility (RE) Code of 3B.  At the time he had completed 11 months and 17 days of net active service during the period of service under review.

14.  A DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), dated 27 January 1981, shows the applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge.  On 23 September 1982, the ADRB, after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable and voted to deny the applicant's request to change the characterization of his service.  The applicant was notified of the ADRB's decision on 18 October 1982.

15.  Army Regulation 635-200, in effect at the time, 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, and convictions by civil authorities.  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 if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

16.  Army Regulation 635-5-1 (Separation Program Designator (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 "JKA" as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, paragraph 14-33b(1), based on misconduct - frequent incidents of a discreditable nature with civil or military authorities.

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was wrongfully sent to the retraining brigade.

2.  Records show the applicant was reassigned from the IDF, Fort Sill, to the USARB, Fort Riley, and that he served the last eight days of his sentence to 
confinement at the USARB in a trainee status.  Records also show the applicant remained in a trainee status at the USARB subsequent to his sentence to confinement.

3.  There is no evidence that the applicant was improperly assigned to the USARB in a trainee status and the applicant provides insufficient evidence to show he was wrongfully sent to the USARB.  In fact, the evidence of record shows the applicant's battalion commander at the USARB informed the separation authority that the applicant had been recycled at the USARB on
29 November 1979 based on unsatisfactory cadre reports and that the applicant continued to demonstrate a pattern of misconduct.  Moreover, the applicant indicated to his battalion commander that he wanted to speak to the USARB commander concerning his return to the retraining brigade [emphasis added] in lieu of the commander taking action on his pending separation.  Thus, the evidence of record does not support in applicant's contention in this instance.

4.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b(1), based on frequent incidents of a discreditable nature with civil or military authorities was proper and equitable and in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows that during the applicant's period of military service under review he received nonjudicial punishment on two occasions and he had one summary court-martial.  Thus, the applicant's record of service 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 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.


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)                                         AR20090009061



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ABCMR Record of Proceedings (cont)                                         AR20090009061



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