IN THE CASE OF:	

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019219 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states when he asked for his discharge, he did not fully understand the type of discharge he would receive.  He states that if he could start over, he would not have asked for the type of discharge he received; instead, he would have served out his remaining period of service in the Army.

3.  The applicant provides no additional evidence in support of 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 enlisted in the Regular Army on 11 January 1977.  He completed training and he was awarded military occupational specialty 11E (Armor Crewman).

3.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 8 February 1977, for failing to obey a lawful order on 7 February 1977
* 8 June 1977, for absenting himself from his appointed place of duty on 7 June 1977
* 22 August 1977, for absenting himself from his appointed place of duty on 21 August 1977
* 11 January 1978, for absenting himself from his appointed place of duty on 5 January 1978

4.  His record shows he was reported by his unit as absent without leave (AWOL) from on or about 5 January 1978 to on or about 11 January 1978.

5.  His record shows he was formally counseled by members of his chain of command on at least eleven separate occasions between 1 June 1977 and
28 February 1978, for a myriad of performance and conduct-related matters that included, but was not limited to, possession of drug paraphernalia, tardiness, failure to pay debts, failure to repair, and overall unsatisfactory duty performance.

6.  On 20 January 1978, he was barred from reenlistment.  On this same date, his immediate commander notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities.

7.  On 23 January 1978, he acknowledged receipt of the separation memorandum, the basis for the contemplated action and its effects, the rights available to him, and the effect of any action taken by him to waive his rights.   He requested a personal appearance and consideration of his case by a board of officers; however, on 1 March 1978, he waived his right to a personal appearance and consideration of his case by a board of officers.  Additionally, on 1 March 1978, he declined to submit statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under conditions other than honorable was issued to him.  

8.  His immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct.  On 13 April 1978, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct, and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 25 May 1978, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged in accordance with Army Regulation 635-200, chapter 14, with an under other than honorable conditions discharge.  He was assigned a separation program designator (SPD) of JKA.  This form further shows he completed 1 year, 4 months, and 9 days of total active service.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

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

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, provided the policy and outlined the procedures for separating Soldiers for unfitness (misconduct).  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing a dishonorable failure to pay just debts.  This regulation prescribed that an under other than honorable conditions discharge was normally issued, unless the particular circumstances warranted an under honorable conditions (general) or honorable discharge.

12.  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.

13.  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.  

14.  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 states that the SPD code JKA is the appropriate code to assign to Soldiers involuntarily separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b by reason of a pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record reveals a history of misconduct which includes four instances of NJP, an extensive history of negative counseling, and a bar to reenlistment.  He was provided multiple counseling and/or opportunities for rehabilitation by his chain of command, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  The applicant was afforded his right of notification and consultation with counsel.  Furthermore, there is no evidence his rights were jeopardized.  His character of service is commensurate with his overall record of military service, and the reason for discharge and his characterization of service were both proper and equitable.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory; therefore, 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)                                         AR20090011583



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110019219



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1