IN THE CASE OF:	  
		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20090000271 


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 to a general discharge.

2.  The applicant states that he was court-martialed without a military judge present and that he received a letter stating as such, but lost this letter. 

3.  The applicant did not provide any additional documentary 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's records show he enlisted in the Regular Army for a period of 3 years on 14 November 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36K (Field Wireman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

3.  The applicant's records show he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any achievements, commendations, or acts of special recognition during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 6 April 1970, for being absent without leave (AWOL) during the period on or about 4 April 1970 through on or about 6 April 1970.  His punishment consisted of a forfeiture of $25.00 pay for one month; 

	b.  on 2 November 1970, for being derelict in the performance of his duties in that he failed to secure his M-16 rifle and permitting it to become seriously damaged on or about 25 September 1970.  His punishment consisted of a forfeiture of $25.00 pay for one month, 14 days of restriction, and 14 days of extra duty.  He appealed his punishment on 4 November 1970; however, his appeal was denied on 16 November 1970; 

	c.  on 2 February 1971, for failing to go at the time prescribed to his appointed place of duty on or about 4 January 1971.  His punishment consisted of a forfeiture of $25.00 pay for one month; and 

	d.  on 12 February 1971, for failing to go at the time prescribed to his appointed place of duty on or about 21 January 1971.  His punishment consisted of a reduction to private (PV2)/E-2 and a forfeiture of $33.00 pay for one month.

5.  On 18 May 1971, the applicant pleaded guilty at a Special Court-Martial to one specification of failing to go at the prescribed time to his appointed place of duty on or about 1 March 1971 and one specification of willfully disobeying a lawful order from his first sergeant on or 2 March 1971.  He also pled not guilty to one specification of missing his company movement through neglect on or about 1 March 1971; one specification of disobeying a lawful order from his commanding officer on or about 12 February 1971; and two specifications of disobeying lawful orders from his commanding officer on 29 March 1971 and his platoon leader on 1 April 1971.  The Court found him guilty of all specifications except the one specification of missing company movement through neglect on or about 1 March 1971, and sentenced him to reduction to private (PV1)/E-1, confinement at hard labor for 45 days, and a forfeiture of $75.00 pay for 2 months.  The sentence was adjudged and approved on 18 May 1971.

6.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 26 August 1971 under the provisions of Army Regulation   635-212 (Personnel Separations) for unfitness with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 1 year, 9 months, and 14 days of creditable active military service.

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

8.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  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 dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

9.  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.  

10.  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 contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant had four instances of nonjudicial punishment, one instance of a Special Court-Martial, and other infractions including instances of AWOL.  Although his record is void of the facts and circumstances surrounding his discharge, it appears that his chain of command initiated elimination action against him under the provisions of Army Regulation 635-212 by reason of unfitness, that the elimination action was approved, and that he was accordingly discharged. 

3.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were presumably met, and that the rights of the applicant were presumably fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to a general or an honorable discharge.

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)                                         AR20090000271





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ABCMR Record of Proceedings (cont)                                         AR20090000271



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