IN THE CASE OF:	  

		BOARD DATE: 	        16 June 2009

		DOCKET NUMBER:  AR20090004095 


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 there is no error or injustice; however, he wishes to tell his side of the story.  He states that at the time of his enlistment, his life was filled with family troubles and peer pressure, so he decided to join the Army.  After his induction, he learned the use of alcohol and that his use of drugs only fueled his stubbornness.  His rebelliousness culminated in a childish act in the field that led to a reprimand.  He then totally disregarded his obligation to his country and his fellow Soldiers and decided to go in an absent without leave (AWOL) status.  He adds that he has felt shame and guilt since that incident and his shame and guilt are even worse when he watches the news and sees young men and women serving his way of life.  He concludes by petitioning this Board to upgrade his discharge so he may turn the page on his past.

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 record shows he enlisted in the Regular Army for a period of 3 years on 27 December 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s record further shows he served in Germany from on or about 10 April 1980 to on or about 4 April 1981.  His awards and decorations include the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

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

	a.  on 10 March 1981, for two instances of being AWOL during the periods on or about 24 February 1981 through on or about 25 February 1981 and on or about 26 February 1981 through on or about 27 February 1981, and disobeying a lawful order to join his platoon in the field on or about 27 February 1981.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $116.00 pay, and 7 days of confinement in Correctional Custody Facilities (CCF); and

	b.  on 26 November 1980 (erroneously shown as 1981), for failing to go to his appointed place of duty on three different occasions in November 1980.  His punishment consisted of reduction to private (PV2)/E-2 (suspended until 25 May 1981), a forfeiture of $130.00 pay, and 7 days of CCF.

5.  On 25 April 1981, the applicant pleaded guilty at a Summary Court-Martial to five specifications of failure to report on or about 10, 11, and 12 March and 4 and 6 April 1981; one specification of being AWOL during the period on or about 14 March 1981 through on or about 31 March 1981; and one specification of willfully disobeying a lawful order on or about 3 April 1981.  The Court sentenced him to reduction to PVT/E-1, a forfeiture of $330.00 pay for one month, and confinement at hard labor for 30 days.  The sentence was adjudged and approved on 25 April 1981. 

6.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 16 June 1981 under the provisions of paragraph 14-33b of Army Regulation 635-200 (Personnel Separations), for misconduct (frequent involvement in incidents of a discreditable nature with civil or military authorities), with an under other than honorable conditions character of service.  This form also shows he completed 1 year, 4 months, and 6 days of creditable active service and had 43 days of lost time.

7.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

8.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

9.  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, 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 applicant’s record is void of the facts and facts and circumstances that led to his discharge.  However, absent evidence to the contrary, it is presumed that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. 

3.  The applicant had a history of misconduct including two instances of nonjudicial punishment, one court-martial, confinement, and multiple instances of AWOL.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant an honorable discharge or general discharge.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090004095



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ABCMR Record of Proceedings (cont)                                         AR20090004095



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