BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120006182 


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

2.  The applicant states his discharge was correct; however, he was told his discharge would automatically be upgraded to general under honorable conditions.

3.  The applicant provides:

* request for certified criminal records search, dated 18 November 2011
* self-authored statement, dated 28 November 2011
* three character reference letters
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 20 June 1978 and held military occupational specialty 11B (Infantryman).  He was assigned to Fort Bragg, NC, from 23 February 1980 to 27 January 1982.

3.  His record contains a memorandum issued by the Commander, Company C, 1st Battalion, 504th Infantry Regiment, Fort Bragg, dated 21 May 1981, wherein he stated the applicant was not qualified for the Army Good Conduct Medal for the period ending 9 April 1981 because he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for a failure to report.

4.  His record contains several DA Forms 4187 (Personnel Action) ranging in date from 21 October 1981 to 19 January 1982.  These forms show:

* he was absent without leave (AWOL) from 23 September 1981 to 19 October 1981
* he was AWOL from 23 July 1981 to 28 July 1981
* he was taken into custody by civilian authorities for breaking and entering on 8 January 1982

5.  His records show he accepted NJP under Article 15 of the UCMJ on five separate occasions ranging in date from 9 April 1981 to 6 November 1981 for:

* failing to report
* being AWOL
* leaving his appointed place of duty without authority

6.  His record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 16 November 1981, wherein his commander stated his conduct and efficiency were unsatisfactory, he had no initiative, and he continually malingered.

7.  The separation packet and circumstances surrounding his discharge are not available for review in this case; however, his record contains a duly-constituted DD Form 214 which shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), for misconduct – frequent incidents of a discreditable nature with civil 

or military authorities – with his service characterized as under other than honorable conditions.  This form further shows he completed 3 years, 5 months, and 21 days of net active service during this period of enlistment with 57 days of lost time.

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

9.  He provided a request for certified criminal records search, dated 18 November 2011, wherein it shows:

* on 9 April 1993, he was charged with driving while his license was revoked
* on 26 March 1994, he was charged with driving while his license was revoked and failure to wear a seatbelt
* on 7 October 2006, he was found guilty of unsafe passing on a yellow line and improper equipment (speedometer)

10.  He provided a self-authored statement and three character reference letters, all of which essentially state he has changed his life in positive ways and is a productive and charitable member of community and church, and a good friend, husband, and father.

11.  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 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.  The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.  A discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under this chapter.

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.  

13.  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 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 admits he was properly and equitably discharged in accordance with the regulation in effect at the time, but requests an upgrade of his discharge because he was told it would automatically be upgraded to a general discharge and because he has made positive changes in his life.

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

3.  His separation packet and the facts and circumstances surrounding his discharge were not available for review in this case.  However, 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.

4.  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.  His record contains an extensive history of AWOL and NJP.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade to general under honorable conditions.


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 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)                                         AR20120006182



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ABCMR Record of Proceedings (cont)                                         AR20120006182



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