IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011537 


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 discharge under other than honorable conditions to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that upon entering the Army, he was promised that he would be able to attend college at some point.  He contends that he was subsequently told that the only school he would be allowed to attend was the military type, which never occurred either.  The applicant states he became discouraged, his duty performance suffered, and he became very insubordinate to his chain of command.  As a result, he was sent to a central confinement facility for a period of 25 days.  He states that upon return to his unit, he was ready to comply with his surroundings, but was not allowed to do so.

3.  The applicant states that he was transferred to another unit where he quickly realized that he was surrounded by individuals who "were one disciplinary action away from being dismissed from the Army."  He contends that he made several requests to be transferred from that unit because he did not want to be associated with individuals who were considered to have no goals or drive.  The applicant decided that regardless of the oath he took upon entering the Army, he refused to be labeled as someone with no redeeming qualities, so he walked away and did not return.  The applicant contends that the conditions of his discharge have hindered his career choices and he would like that to change.  He concludes that serving in the military was his way to an education, something that just did not happen for him.

4.  The applicant provides three character references from acquaintances as 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's record shows that he participated in the U.S. Army Reserve Delayed Enlistment Program during the period 7 July 1976 through 20 September 1976.  On 21 September 1976, he enlisted in the Regular Army. He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

3.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Report of Separation from Active Duty) and sufficient additional documents on file to conduct a fair and impartial review of this case.

4.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for failing to go at the time prescribed to his appointed place of duty and for absenting himself without authority from his unit [being absent without leave (AWOL)].

5.  Headquarters, 1st Corps Support Command, Fort Bragg, North Carolina, Orders 107-28, dated 5 May 1978, show the applicant was reduced in rank and grade from private (PV2)/E-2 to PV1/E-1 effective 25 May 1978.  These orders also show the applicant was reassigned to the U.S. Army Separation Transfer Point, Fort Bragg, for the purpose of separation processing with a reporting date and date of separation of 6 June 1978.
6.  Headquarters, XVIII Airborne Corps and Fort Bragg, Orders 109-35, dated 6 June 1978, show the applicant was permanently expelled from entering or reentering the limits of Fort Bragg following his discharge.

7.  Headquarters, XVIII Airborne Corps and Fort Bragg, Orders 109-35, dated 6 June 1978, show the applicant was discharged from the Regular Army effective 6 June 1978.

8.  The applicant's DD Form 214 shows he was discharged accordingly.  Item 9c (Authority and Reason) of this form shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), with a separation program designator code of "JKA" (pattern of misconduct).  Item 9e (Character of Service) shows that he received an "under other than honorable conditions" characterization of service.

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

10.  The applicant provides three character references from acquaintances attesting, in essence, that he is a good man who is a well-respected and productive member of both his church and his community.

11.  Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.

12.  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's contention that his record should be corrected by upgrading his discharge to a general under honorable conditions discharge was carefully considered and determined to be without merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  The applicant admits that he had a pattern of misconduct and does not question whether he was properly and equitably discharged in accordance with the regulation in effect at the time.

4.  The Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is no indication of procedural errors which would tend to jeopardize his rights.  In the absence of evidence to the contrary, it must be presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge under other than honorable conditions to a general, under honorable conditions 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)                                         AR20090011537



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ABCMR Record of Proceedings (cont)                                         AR20090011537



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