IN THE CASE OF:	  

		BOARD DATE:	        6 August 2009

		DOCKET NUMBER:  AR20090005671 


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 under other than honorable conditions discharge to fully honorable.

2.  The applicant states, in effect, that his discharge should be upgraded.

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 3 August 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13A (Field Artilleryman). The highest rank he attained during his military service was private (PV2)/E-2.

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

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

	a.  on 7 September 1966, for failing to properly clean his M-14 rifle on or about 3 September 1966.  His punishment consisted of 10 days of restriction and extra duty, and a forfeiture of $15.00 pay; and

	b.  on 12 December 1966, for being absent without leave (AWOL) during the period on or about 4 December 1966 to on or about 12 December 1966.  His punishment consisted of a forfeiture of $22.00 pay, and 14 days of extra duty and restriction.

5.  On 21 May 1968, the applicant pleaded not guilty at a Special Court-Martial to two specifications of being AWOL during the periods on or about 11 June 1967 to on or about 3 August 1967 and on or about 21 November 1967 to on or about
10 April 1968.  The Court found him guilty of the specifications and sentenced him to confinement at hard labor for 6 months and a forfeiture of $41.00 pay for
6 months.  The sentence was adjudged on 21 May 1968.  However, on 4 June 1968, the convening authority approved the sentence but suspended the execution of confinement at hard for a period of six months.

6.  On 12 June 1968, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 5 June 1968 to on or about 10 June 1968.  His punishment consisted of a forfeiture of $31.00 pay for 2 months.

7.  On 8 July 1968, the applicant again accepted NJP under the provisions Article 15 of the UCMJ for being AWOL during the period on or about 30 June 1968 to on or about 2 July 1968.  His punishment consisted of a forfeiture of $31.00 pay for 2 months.

8.  On 8 July 1968, the unexecuted portion of the applicant's approved sentence to confinement at hard labor for 6 months was ordered executed.  He was subsequently confined at Fort Riley, KS.

9.  On 9 August 1968, the unexecuted portion of the applicant's court-martial sentence to forfeiture of pay was ordered suspended until 20 September 1968 and on 6 September 1968, the unexecuted portion of his sentence to confinement at hard labor and forfeiture of pay were ordered remitted.

10.  On 2 September 1969, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods on or about 19 December 1968 to on or about 16 May 1969 and on or about 22 May 1969 to on or about 27 August 1969.

11.  On 17 October 1969, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation    635-212 (Personnel Separations – Unfitness and Unsuitability) by reason of unfitness citing the applicant’s continuous disciplinary problems, AWOL, negative attitude, and habitual misconduct.  The immediate commander further recommended an Undesirable Discharge Certificate.

12.  On 5 December 1969, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.

13.  On 20 January 1970, the applicant's intermediate commander recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

14.  On 2 February 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge 

Certificate.  He also directed that the applicant be reduced to the lowest enlisted grade.  On 13 February 1970, the applicant was accordingly discharged from the Army.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time of his discharge confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 1 year, 11 months, and 9 days of creditable active military service and had 455 days of lost time.

15.  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.

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

17.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

18.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  
 
19.  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 records reveal an extensive history of indiscipline and/or misconduct including four instances of nonjudicial punishment, one instance of a court-martial, and an extensive history of AWOL.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with applicable regulation and all requirements of law and regulation were 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.

3.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  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)                                         AR20090005671



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ABCMR Record of Proceedings (cont)                                         AR20090005671



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