IN THE CASE OF:	  

		BOARD DATE:  2 July 2013

		DOCKET NUMBER:  AR20120021297 


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 he entered the Army and completed basic and advanced individual training at Fort Sill, OK, without any problems.

   a.  After being assigned to Fort Hood, TX, he rented an apartment in Dallas, TX and he went home on weekends and holidays.  On a couple of occasions he was late for morning formation due to traffic.

   b.  To the best of his knowledge he was never absent without leave (AWOL) or disrespectful towards officers and no charges were brought against him.

   c.  He states he was young at the time of his infraction and he did not understand the importance of an honorable discharge.

   d.  He adds he is interested in applying for the Veterans Retraining Assistance Program to advance his education and improve his employment opportunities; he believes an upgrade of his discharge will assist in this effort.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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.  A DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve on 2 March 1977 for a period of 6 years.  On 18 March 1977, he further enlisted in the Regular Army for a period of 3 years.  At the time he was 18 years of age.

3.  Upon completion of training, he was awarded military occupational specialty (MOS) 17B (Field Artillery Radar Crewman).  He was then assigned to Battery E,
82nd Field Artillery, 1st Cavalry Division, Fort Hood, TX.

4.  On 23 June 1977, the applicant's commander was notified that a records check by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, revealed the applicant concealed a criminal record/conviction upon entry into the Army.

5.  On 2 August 1977, the applicant's company commander initiated action against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), for concealment of a conviction by civil court (i.e., fraudulent enlistment).  He recommended the applicant be retained in the U.S. Army.

   a.  The commander rated the applicant's character of service as "excellent."

   b.  The commander also noted the applicant had received punishment under Article 15, Uniform Code of Military Justice (UCMJ).

6.  The immediate and intermediate commanders recommended approval of the applicant's retention in the U.S. Army.


7.  On 19 August 1977, the separation authority approved the applicant's retention in the U.S. Army.

8.  The applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, on six occasions, as follows:

* on 5 May 1977, for failing to obey a direct order issued by an officer
* on 1 June 1977, for sleeping while on guard duty
* on 6 March 1978, for possessing one ounce (more or less) of marijuana
* on 10 April 1978, for behaving with disrespect towards an officer
* on 18 May 1978 and on 28 August 1978, for failing to go at the times prescribed to his appointed places of duty

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

10.  Headquarters, 1st Cavalry Division, Fort Hood, TX, Orders 265-45, dated
8 December 1978, with Headquarters, III Corps, Fort Hood, TX, 1st Indorsement, dated 26 December 1978, discharged the applicant effective 2 January 1979.

11.  Headquarters, III Corps, Fort Hood, TX, memorandum, dated 2 January 1979, subject:  Reason for Separation, shows an assistant adjutant general notified the applicant the reason for his separation from active duty on 2 January 1979 was "Misconduct - Frequent involvement of a discreditable nature with authorities."

12.  The applicant's DD Form 214 shows, on 2 January 1979, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), due to misconduct - frequent incidents of a discreditable nature with civil or military authorities), with an under other than honorable conditions character of service. He was assigned a Separation Program Designator (SPD) Code of "JKA."  He completed 1 year, 9 months, and 15 days of net active service this period.

13.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  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.  

	b.  Chapter 3, 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.

	c.  Chapter 3, 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.

15.  Army Regulation 15-185 (ABCMR) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was young and did not understand the importance of an honorable discharge, he was never AWOL, or disrespectful to officers, and no charges were brought against him.

2.  Considering the applicant satisfactorily completed training and was awarded MOS 17B, his contention that he was young and not able to understand the importance of an honorable discharge is not supported by the evidence of record.

3.  The evidence of record shows the applicant accepted NJP under Article 15, UCMJ, on six separate occasions for violation of several different Articles of the UCMJ.  Thus, the applicant is accurate when he states he was not formally charged for the offenses.  However, his acceptance of the NJP demonstrates his acknowledgement that he did commit the offenses and he elected NJP in lieu of court-martial charges being preferred against him.

4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has not provided any evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge directed appears to have been, and still is, appropriate.

5.  The applicant's character of service during the period of service under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.

6.  Therefore, there is an insufficient basis for granting the requested relief.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20120021297



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ABCMR Record of Proceedings (cont)                                         AR20120021297



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