IN THE CASE OF:	  

		BOARD DATE: 	        16 June 2009

		DOCKET NUMBER:  AR20090004032 


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.

2.  The applicant states that he was discharged for reasons beyond his control as his father was dying at the time.  He adds that he has been discharged for 38 years and is currently in need of treatment for [medical] problems. 

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 was inducted into the Army of the United States on 28 January 1970.  He completed basic combat training at Fort Knox, KY, and proceeded to Fort Campbell, KY, for completion of advanced individual training (AIT) for military occupational specialty (MOS) 94B (Cook).

3.  The applicant's records also show he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

4.  On 22 May 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 1 May 1970 through on or about 12 May 1970.  His punishment consisted of a forfeiture of $50.00 pay per month for 2 months (suspended for 60 days), 60 days of restriction (45 days suspended for 60 days), and 45 days of extra duty (30 days suspended for 60 days). 

5.  On 12 June 1970, the applicant again accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ.  A copy of this nonjudicial punishment is not available for review with this case; however, on 26 June 1970, the imposed punishment of a forfeiture of $19.00 pay, 14 days of restriction, and 14 days of extra duty was vacated and the unexecuted portion of the punishment was ordered executed. 

6.  On 21 August 1970, the applicant again departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 21 September 1970.  He returned to military control on 12 October 1970.

7.  On 14 October 1970, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate citing his substandard performance and lack of response to counseling.  His bar was ultimately approved by his battalion commander on 26 October 1970.

8.  On 2 November 1970, the applicant pleaded guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 21 August 1970 through on or about 12 October 1970.  The Court sentenced him to confinement at hard labor for 4 months and a forfeiture of $40.00 pay per month for 4 months.  The sentence was adjudged on 2 November 1970 and approved on 5 November 1970.

9.  On 17 December 1970, the applicant was arrested by civil authorities in Little Rock, AR, for burglary.  The facts and circumstances surrounding his arrest and/or the disposition of the charge are not available for review with this case. 
10.  On 14 April 1971, the applicant pleaded not guilty to one specification of failing to go at the prescribed time to his appointed place of duty on or about 5 March 1971 and one specification of disobeying a lawful order on or about 5 March 1971.  The Court found him guilty and sentenced him to confinement at hard labor for 30 days and a forfeiture of $75.00 pay for 3 months.  The sentence was adjudged on 14 April 1971.  Additionally, on 15 April 1971, the convening authority approved a reduced sentence of confinement at hard labor for 15 days and a forfeiture of $50.00 pay for 3 months.  

11.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his records contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 19 July 1971 under the provisions of Army Regulation 635-212 (Personnel Separations) with a separation program number (SPN) of "386" (unfitness - established pattern of shirking) with a character of service of under other than honorable conditions.  This form also shows he completed 1 year and 3 days of creditable active service and had 169 days of lost time. 

12.  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.

13.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability.  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.

14.  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.  


15.  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.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he was undergoing family problems related to his father or that his multiple instances of AWOL were caused by the death of his father.  

3.  The evidence of record shows that the applicant had two instances of nonjudicial punishment, two instances of courts-martial, a bar to reenlistment, and multiple instances of AWOL.  His record is void of the facts and circumstances that led to his discharge; however, it is clear that his chain of command initiated elimination action against him.  His discharge is presumed to have been in accordance with applicable regulation and all requirements of law and regulation were presumably 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.

4.  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.  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)                                         AR20090004032



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ABCMR Record of Proceedings (cont)                                         AR20090004032



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