DOCKET NUMBER:  AR20090004036 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he is currently enrolled in alcohol rehabilitation programs and is trying to be a better, productive person in society.

3.  The applicant provides no additional documentation in support of this case.

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 17 July 1974 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 55B (Ammunition Storage Specialist). 

3.  On 22 November 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be at his appointed place of duty.

4.  On 5 December 1974, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) for the period 29 November 1974 through
4 December 1974.

5.  On 14 May 1975, the applicant accepted NJP under Article 15, UCMJ for leaving his post until he was properly relieved.

6.  On 23 April 1976, the applicant accepted NJP under Article 15, UCMJ for operating a privately owned vehicle, while drunk, in a reckless manner and failing to yield to a blue light and siren.

7.  A DD Form 458 (Charge Sheet), dated 1 September 1976, shows charges were preferred against the applicant for two specifications of stealing a motorcycle on 4 July 1976 and on 25 July 1976, the property of two former fellow Soldiers.

8.  On 5 October 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

9.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs]; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit statements in his behalf.

10.  On 16 December 1976, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 31 January 1977, the applicant was discharged with an undesirable discharge.  He completed a total of 2 years, 6 months, and 10 days of creditable active service with 5 days of lost time due to AWOL.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges 
have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200, 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.  

13.  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 Board acknowledges that the applicant's post-service conduct and achievement are noteworthy.  However, good post service conduct and achievement alone are not a basis for upgrading a discharge and, upon review, the applicant's good post-service conduct and achievement are not sufficient to mitigate his indiscipline in the Regular Army.

2.  The applicant's records show that he received four Article 15s and had one instance of being AWOL during his enlistment, in addition to the offenses for which he was discharged.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.


3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations 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)                                         AR20090004036



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ABCMR Record of Proceedings (cont)                                         AR20090004036



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