IN THE CASE OF:	  

		BOARD DATE:	       10 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005348 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was having a lot of problems and that he completed his 6 year military obligation. 

3.  The applicant provides no additional documentary evidence in support of this application.

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 military records show he enlisted in the Regular Army on 5 June 1967.  He reenlisted for 6 years on 3 July 1969.  He was awarded the military occupational specialty of stock control and accounting specialist.

3.  The available records do not show any significant acts of achievement or valor during his military service and specialist/pay grade E-4 was the highest rank that he achieved.  

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions between 21 August 1968 and 12 December 1972 for unlawfully kicking another Soldier, on 25 July 1968; for committing an assault upon two first lieutenants at an officers' club, on 19 July 1970, by pointing a .45 caliber pistol at them; for operating his privately owned vehicle without a valid operator's license in his possession; and for failing to stop for a traffic signal, on 3 September 1972; for operating his vehicle in an unlawful manner; and for disorderly conduct towards a military policeman then in the performance of his duties, on 7 September 1972; and for being absent from his place of duty, on 6 December 1972. 

5.  The applicant's records contain a DA Form 268 (Report for Suspension of Favorable Actions), dated 19 February 1974, which indicates the basis for suspension of favorable personnel action was court-martial action.  This document shows that, on 16 February 1974, the applicant committed aggravated assault; on 17 February 1974, he communicated a threat, and on 19 February 1974, he had a prohibited weapon in his possession.

6.  The applicant's complete discharge packet is not contained in his available records.  However, the available evidence indicates he was recommended for trial by a special court-martial empowered to adjudge a bad conduct discharge.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was separated, on 18 March 1974, under the provisions of chapter 10, Army Regulation 635-200, with an undesirable discharge after completing a total of 6 years, 9 months, and 4 days of active military service.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
8.  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.

9.  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.

10.  On 26 August 1974, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP on four occasions for various reasons to include:  kicking another Soldier, assaulting two commissioned officers by pointing a .45 caliber pistol at them, operating his privately owned vehicle without a valid operator's license in his possession, failing to stop for a posted traffic signal, disorderly conduct towards a military policeman then in the performance of his duties, operating his vehicle in an unlawful manner, and for being absent from his place of duty.  The available evidence indicates court-martial charges were preferred against him for aggravated assault, communicating a threat, and for possession of a prohibited weapon.

2.  Based on the applicant's record of indiscipline, his 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, he is not entitled to either a general or an honorable discharge.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s discharge and character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the actions that he took during his period of active service; therefore, he has not established a basis to justify upgrading his 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.




      _______ _   __XXX_____   ___
               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)                                         AR20090005348



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ABCMR Record of Proceedings (cont)                                         AR20090005348



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