IN THE CASE OF:	

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017174 


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, in effect, that his Regular Army discharge be upgraded from general (under honorable conditions) to fully honorable.

2.  The applicant states that the remarks section of his DD Form 214 (Armed Forces of the United States Report of Separation or Discharge) shows he had 17 days of lost time.  However, while he was on leave after returning from Vietnam, he was not provided a date to report back to duty.  He states that he received a call from his first sergeant, reported to Fort Lee the next day, was counseled, served his extra duty assignments, and was ready to go back to Vietnam.  He then states that 2 months later he was discharged and no one explained why.  Additionally, he states that 15 years later he joined the National Guard and received an honorable discharge. 

3.  The applicant provides a DD Form 214, NGB Form 22 (Report of Separation and Record of Service), and NGB Form 55a (Honorable Discharge) in support of this application.

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's records show he enlisted in the Regular Army on 26 February 1965.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of duty soldier.  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant's records do not show any significant acts of achievement or valor during his military service.

4.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three occasions between 23 October 1966 and 19 June 1967 for being absent without leave (AWOL) on 22 October 1966, from 19 December 1966 through 4 January 1967, and on 18 June 1967.

5.  Upon the expiration of his term of service on 13 March 1968 (as altered by his lost time), the applicant was released from active duty and transferred to the USAR Control Group (Reinforcement).  The characterization of his service during that period was judged to be under honorable conditions and he was issued a General Discharge Certificate.  He had completed a total of 3 years of creditable active military service with 17 days of lost time.

6.  The applicant enlisted in the California Army National Guard on 22 August 1983 and was discharged from the Ready Reserve on 21 August 1986 with an honorable discharge.

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, provided the option of characterizing a soldier's service as under honorable conditions (general discharge) when his or her military record was not sufficiently meritorious to warrant an honorable discharge.  Paragraph 1-8 of that regulation specified that periods of AWOL, periods of confinement, nonjudicial punishment, and convictions by court-martials, should all be taken into consideration when determining the characterization of a Soldier's service.

8.  Army Regulation 635-200 (Personnel Separations), 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's National Guard service was 15 years after the active duty time covered by the DD Form 214 the applicant wants corrected.  While receiving an honorable discharge at the completion of the National Guard service is notable, it is not, in of itself, sufficient to warrant upgrading a properly characterized discharge.

2.  The applicant accepted nonjudicial punishment on three occasions and had 17 days of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Based on the foregoing, there is insufficient evidence to support the applicant's request for upgrading his discharge to honorable.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20080017174





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ABCMR Record of Proceedings (cont)                                         AR20080017174



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