IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090004165 


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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was mistreated during the time he was assigned in Alaska.  The applicant states that Alaska Airlines was on strike and he was late reporting to his unit.  He contacted his unit to report the delay; however, he was still reported absent without leave (AWOL).  The applicant states that he has been a model citizen and has given back to the country.  He is an honorable man who wants to die with an honorable discharge.

3.  The applicant provides a 12-page Miami-Dade County, Florida Criminal Justice and Civil Infraction Case List; a 2-page Florida Department of Highway Safety and Motor Vehicles Driver License Check, dated 8 January 2009; and two letters of support from fellow associates.

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 4 May 1971 for a 4-year term  of service.  He successfully completed basic training and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 17 February 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a non-commissioned officer (NCO).  

4.  On 30 March 1972, the applicant accepted NJP under Article 15, UCMJ for communicating a threat to an NCO.  

5.  On 31 August 1972, the applicant accepted NJP under Article 15, UCMJ for failure to be at his appointed place of duty.  

6.  On 13 October 1972, the applicant was convicted, pursuant to his plea, by a special court-martial of three specifications of being AWOL during the periods  
20 July through 31 July 1972, 3 August through 20 August 1972, and 
3 September through 5 September 1972.  His sentence consisted of confinement at hard labor for 100 days and reduction to the rank of private/E-1.

7.  On 12 March 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL from 7 February through 15 February 1973.

8.  A DD Form 458 (Charge Sheet), dated 23 April 1974, shows charges were preferred against the applicant for being AWOL for the period 5 June 1973 through 19 April 1974.

9.  On 29 April 1974, 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).  
The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge; 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; 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 17 May 1974, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be issued an undesirable discharge.  On 19 June 1974, the applicant was discharged and issued an Undesirable Discharge Certificate.  The applicant had completed 
1 year, 9 months, and 7 days of creditable active service with 489 days of lost time due to being AWOL and in confinement, 318 days of which was subsequent to his normal expiration term of service date.

11.  The applicant provided two letters of support from fellow associates.  The authors stated that the applicant has come to terms with his drug issue and that the applicant is in the process of rebuilding his life.  One author stated that the applicant was in the process of successfully completing a 6-month substance abuse program (his projected date for completing the program was May 2009).  The applicant had complied with all requirements by attending daily group sessions, daily house sessions, daily recreational activities, evening fellowship meetings, weekly HIV-AIDS awareness, life skills training, and weekly urine tests.

12.  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.  

13.  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.  


14.  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 post-service achievements and conduct are noteworthy.  However, good post service conduct alone is not a basis for upgrading a discharge, and upon review, the applicant's good post service conduct is not sufficient to mitigate his indiscipline when he was in the Army.

2.  The applicant's records show that he received four nonjudicial punishments, one special court-martial, and he had five instances of being AWOL, including one lengthy period of AWOL.  He had completed 1 year, 9 months, and 7 days of creditable active service with 489 days of lost time due to being AWOL and in confinement. Based on these facts, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or general 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)                                         AR20090004165



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ABCMR Record of Proceedings (cont)                                         AR20090004165



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