IN THE CASE OF:	  

		BOARD DATE:	  	  24 November 2009

		DOCKET NUMBER:  AR20090012202 


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 reconsideration of his request that his undesirable discharge be upgraded to an honorable discharge or a general discharge, under honorable conditions.  Additionally, he requests that he be allowed to appear before the Board in Washington, DC, at no expense to the U.S. Government if he does not receive an upgrade of his discharge of a satisfactory magnitude.

2.  The applicant states that the Army Board for Correction of Military Records (ABCMR), Record of Proceedings, dated 12 May 2009, state in the Discussion and Conclusions section, "[t]here is no available evidence to support the applicant's assertions."  He respectfully requests that the Board "consider that there are no documents and/or memoranda that constitute facts that are contrary to, or otherwise vitiate, or refute, his assertions."

3.  The applicant states that the Record of Proceedings also stipulates that there is some type of record of him missing guard duty, but he never missed guard duty or any other formation in violation of Article 86, Article 87, or other associated Article of the Uniform Code of Military Justice (UCMJ).  Therefore, he should be given the benefit of the doubt.  He concludes by stating he earnestly believes he is entitled to an upgrade of his discharge.

4.  The applicant provides, in support of his application, five personal reference letters.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090001092 on 12 May 2009.

2.  The applicant now provides new arguments in support of his previous request and he raises new issues that require reconsideration.  

3. The applicant was inducted into the Army of the United States on 23 April 1970 and discharged on 28 April 1970 for the purpose of enlisting in the Regular Army (RA).  He enlisted in the RA for a period of 3 years on 29 April 1970.

4.  The applicant's military personnel records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 9 July 1971.  This document shows the applicant received nonjudicial punishment (NJP) "for on or about
1140 hours, 1 June 1971, at Camp Stanley, Korea, having knowledge of a lawful order given to you [by] Captain S______ to produce [your] ID [identification] card (DD Form 2A), an order to which it was your duty to obey, failed to obey the same."  The punishment imposed consisted of reduction to the rank of private first class/pay grade E-3 (suspended for 2 months) and 10 days of extra duty.  The applicant acknowledged with his signature he received the communication of the punishment imposed on 9 July 1971 and indicated that he did not appeal the punishment.

5.  The applicant's military personnel records contain a DA Form 2627-1, dated 27 October 1971.  This document shows the applicant received NJP "for on or about 1745 hours, 22 October 1971, at Camp Casey, Korea, without authority, fail[ing] to go at the time prescribed to [your] appointed place of duty, to wit:  Guard duty at Company E, 702nd Maintenance Battalion, 2nd Infantry Division [Korea]; this in violation of Article 86, UCMJ."  The punishment consisted of forfeiture of $15.00 for the period of one month, restriction to the Post Engineer Compound for 7 consecutive days, and 7 days of extra duty.  The applicant acknowledged with his signature he received the communication of the punishment imposed on 27 October 1971 and indicated that he did not appeal the punishment.

6.  The applicant's military personnel records do not contain a copy of his administrative separation packet.



7.  Headquarters, 2nd Infantry Division (Korea), Special Orders Number 83, dated 3 April 1972, show the applicant was reassigned from Korea on 9 April 1972 to the U.S. Army Returnee/Reassignment Station, Oakland Army Base, California with a reporting date of 11 April 1972.  The authority for the applicant's orders was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).

8.  Headquarters, U.S. Army Personnel Center, Oakland, California, Special Orders Number 104, dated 13 April 1972, show the applicant was discharged on 13 April 1972, under the provisions of Army Regulation 635-200 for the good of the service, and issued a DD Form 258A (Undesirable Discharge Certificate).

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty this period on 29 April 1970 and that he was discharged on 13 April 1972.  At the time he had completed
1 year, 11 months, and 15 days of net active service this period.  The DD Form 214 also shows in:

	a.  item 5a (Grade, Rate or Rank) the entry "PV1," in item 5b (Pay Grade) the entry "E1," and in item 6 (Date of Rank) the entry "31 Mar 72";

   b. item 11a (Type of Transfer) the entry "Discharge" and in item 11c (Reason and Authority) the entry "CH 10 AR 635-200 SPN 246 DISCHARGE" 
(i.e., Chapter 10, Army Regulation 635-200, Separation Program Number 246);

	c.  item 13a (Character of Service) the entry "Under Conditions Other Than Honorable" and in item 13b (Type of Certificate Issued) the entry "DD Form 258A" (Undesirable Discharge Certificate); and in

	d.  item 32 (Signature of Person Being Transferred or Discharged) that the applicant placed his signature on the document. 

10.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Personnel Center, Oakland, California, letter, dated 13 April 1972, subject:  Review of Discharge.  This document shows the applicant was notified he was being issued an undesirable discharge from the Army.  This document also shows he was informed that the Army Discharge Review Board (ADRB) is an administrative agency created within the Department of the Army to review upon its own motion or application by/or on behalf of the individual concerned, the type and nature of the discharge certificate or other documentary evidence of discharge or dismissal of former members of the Armed Forces.  The document further shows that an application for review of discharge must be received within 15 years after the effective date of discharge or dismissal.  The applicant acknowledged with his signature that he had read and fully understood that, if he desired, he could request a review of his discharge by the ADRB.

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

12.  In support of his request for reconsideration of his application, the applicant provides the following documents.

	a.  A letter from Ms. D___ E. G____, dated 22 April 2009, who states she is a friend and partner in prayer of the applicant.  Ms. G____ states she has known the applicant for more than 32 years and personally attests to his exemplary citizenship and strong moral character.

	b.  A letter from Mr. I___ H____, dated 15 May 2009, who states he has known the applicant for 59 years and considers him a very honorable person with outstanding integrity and character.

   c.  A letter from Mr. C____ H____, dated 5 May 2009, who states he knew the applicant before his induction into military service and that he has always been a very responsible person.  He also states that since the applicant's dismissal from the armed forces his attitude towards life and his goals have improved, and he has been responsible for the increased well-being of others over the years.
   
	d.  A letter from Ms. S_____ H. A____ (the applicant's sister), dated 30 April 2009, who states that she believes her brother went through a phase of rebellion in his youth, which was brief, but it has had an unfortunate and lasting impact on his life.  She states that when the applicant entered military service he fell in with a crowd of people that he was not familiar with as a youth, and he started acting out in a way that was a shock to his family.  However, after his discharge, he returned to the brother she always knew.  She adds that he obtained a job, went into business for himself, accepted the Lord into his life, married and had children, and has been a productive member of society ever since.  She states that the applicant recently lost his son in Afghanistan, but he never abandoned his loyalty and support for the United States of America.  She also attests to the applicant's exemplary citizenship and strong moral character.

   e.  A letter from Colonel A____ B. H____, U.S. Army (Retired), dated
12 March 2009, the applicant's brother-in-law.  Colonel H____ states he has known the applicant for the past 28 years and that he is a devoted father and a civic-minded person.  He also states the applicant has two sons and a grandson, all who enlisted in the Army, and that he lost his son in Afghanistan in March 2006.  He adds that the applicant maintains the deepest respect for the Army.  Colonel H_____ states that he does not know the details of the applicant's discharge, but the applicant is not the same man whose youthful immaturity may have led to some poor decisions that led to his discharge.  He summarizes the applicant's post-service achievements and concludes the applicant is deserving of an upgraded discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

14.  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.

15.  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.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.

17.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) of the Separations Regulation contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  It also states in:

   a.  item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade) enter the grade/pay grade in which serving at time of separation; and in item 6 (Date of Rank) enter the date of rank for the grade shown in item 5a;

   b.  item 11a (Type of Transfer or Discharge), in pertinent part, enter "Discharge" and in item 11c (Reason and Authority) that "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN and descriptive reason for transfer or discharge"; and in

   c.  item 13a (Character of Service) enter the character of service approved by the separation authority in capital letters (e.g., "UNDER CONDITIONS OTHER THAN HONORABLE") and in item 13b (Type of Certificate Issued) enter the form number of the certificate issued.
   
18.  Army Regulation 635-5-1 (Separation Program Numbers (SPN) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.
This Army regulation shows that SPN 246 will be assigned to a Soldier discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.

19.  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.

20.  Army Regulation 15-185 states, in pertinent part, that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for upgrade of his discharge should be reconsidered because there are no documents or memoranda that constitute facts that refute his assertions that his discharge was the result of a number of minor indiscretions.  He contends the ABCMR, Record of Proceedings, dated 
12 May 2009, stipulates that there is some type of record of him missing guard duty, but he never missed guard duty or any other formation.

2.  The evidence of record shows that a DA Form 2627-1, dated 9 July 1971, imposed NJP against the applicant for failing to obey a lawful order and the applicant acknowledged receipt of the punishment imposed for this act of misconduct.  The evidence of record also shows that a DA Form 2627-1, dated 27 October 1971, imposed NJP against the applicant for failing to go at the time prescribed to his appointed place of duty (i.e., guard duty) and that the applicant acknowledged the punishment imposed for his act of misconduct.  Thus, the evidence of record confirms there are records of the applicant's NJP that substantiate the fact that he failed to obey a lawful order and that he failed to go to his appointed place of duty (i.e., guard duty).

3.  The evidence of record shows that the Personnel Separations regulation pertaining to enlisted personnel, in effect at the time, provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The available evidence (i.e., that includes the applicant's reassignment orders and discharge orders and, in particular, his DD Form 214 that he reviewed and authenticated with his signature and the Review of Discharge memorandum that he signed) shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial [emphasis added].  Thus, the evidence of record provides overwhelming evidence that refutes the applicant's contention that his discharge was based on a number of minor indiscretions.

4.  The evidence of record shows that Army Regulation 635-200, in effect at the time, required that there be no element of coercion involved in the submission of a request for discharge for the good of the service in lieu of trial by court-martial and that the applicant was required to be provided an opportunity to consult with counsel.

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.  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 the applicant acknowledged with his signature that he was informed of the procedure for submitting an application for review of his undesirable discharge to the ADRB within 15 years after the effective date of discharge.  Thus, it is concluded that the applicant understood the basis for his character of service and the type of discharge he received.  Therefore, in view of all of the foregoing, the applicant provides insufficient evidence in support of the assertions he presents in support of his request for reconsideration of his request for an upgrade of his discharge.

7.  The applicant's post-service conduct, personal commitment to family, and contributions to the community since his discharge were also carefully considered.  The applicant's good post-service conduct is noteworthy, but it is not so meritorious as to warrant an upgrade of his discharge.

8.  The applicant’s request for a personal appearance if he was not granted an upgrade of satisfactory magnitude was considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20090001092, dated 12 May 2009.



      _______ _  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)                                         AR20090012202



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ABCMR Record of Proceedings (cont)                                         AR20090012202



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