BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090018476 


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 to an honorable discharge.

2.  The applicant states the Army never gave him a chance to go to drug rehabilitation.  He went to a Department of Veterans Affairs (DVA) drug rehabilitation program in 2002 and is still free of drugs.
 
3.  The applicant provides no substantiating documents to support his request.

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 completed 3 years, 10 months, and 23 days as a Regular Army airborne infantryman.  Three nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), were waived to permit his reenlistment.  On 28 February 1977, he reenlisted in the rank/grade of specialist four (SP4)/E-4.

3.  Following his reenlistment, the applicant received NJP actions as follows:

   a.  on 12 April 1977, for failing to go at the time prescribed to his appointed place of duty on 10 March and 22 March 1977.  His punishment consisted of reduction to the rank/grade of private first class (PFC)/E-3 (suspended for 90 days), and restriction and extra duty for 14 days;

   b.  on 21 April 1977, the suspension of the punishment to reduction to PFC/
E-3 imposed on 12 April 1977 was vacated and ordered duly executed;

   c.  on 21 April 1977, for failing to go at the time prescribed to his appointed place of duty on 15 and 16 April 1977.  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2, forfeiture of $97 pay per month for one month, and restriction for 14 days;

   d.  on 20 December 1978, for failing to go at the time prescribed to his appointed place of duty on 19 November 1978 (3 specifications) and
20 November 1978.  His punishment consisted of reduction to reduction to pay grade E-3 (suspended until 20 April 1979) and extra duty for 14 days;

   e.  on 6 February 1979, the suspension of the punishment to reduction to PFC/E-3 imposed on 22 December 1978 was vacated and ordered duly executed;

   f.  on 19 April 1979, for being absent without leave (AWOL) from 1-3 April 1979.  His punishment consisted of correctional custody for 7 days;

   g.  on 13 November 1979, for being AWOL from 2-8 October 1979 and from 15-18 October 1979.  His punishment consisted of reduction to the rank/grade   of private (PV1)/E-1, forfeiture on $224.00 per month for 2 months (suspended until 12 January 1980), and correctional custody for 30 days (suspended until   12 January 1980); and

   h.  on 19 November 1979, the suspension of punishment of forfeiture of $224.00 per month for 2 months and correctional custody for 30 days, imposed on 13 November 1979 was vacated and ordered duly executed.

4.  The specific facts and circumstances surrounding the applicant's separation are not contained in the available records.  However, on 11 March 1980, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel).  The separation authority directed issuance of an Under Other Than Honorable Conditions Discharge Certificate with a separation program designator (SPD) code of JKA.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 27 March 1980 he was discharged with an under other than honorable conditions characterization of service under the provisions of Army Regulation 635-200, paragraph 14-33b(1), by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with an SPD code of JKA.  It also shows a list of seven periods of AWOL.

6.  Army Regulation 635-200 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.  

7.  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.  At that time, SPD code of JKA was appropriate for Soldiers separated for frequent involvement of a discreditable nature under the provisions of Army Regulation 635-200, chapter 14.

8.  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.

9.  Paragraph 3-7b of the regulation 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.

10.  Army Regulation 15-185 (ABCMR), paragraph 2-5 states, "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 states the Army never gave him a chance to go to drug rehabilitation.  He went to a DVA drug rehabilitation program in 2002 and he is still free of drugs.

2.  There is no evidence of drug abuse in the applicant's military record.  He provided no evidence that he needed drug rehabilitation while in the service and offered no rationale for the implied conclusion that this alleged drug abuse somehow mitigated not only itself but the applicant's other misconduct as well.

3.  The discharge process must be presumed to have been in accordance with applicable law and regulations and the applicant's service appropriately characterized in the absence of evidence to the contrary.  There is nothing in the available records or in the evidence submitted by the applicant to overcome this presumption.

4.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20090018476



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ABCMR Record of Proceedings (cont)                                         AR20090018476



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