IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008499 


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 honorable conditions (general) discharge to fully honorable.

2.  The applicant states that as a volunteer with service in Vietnam and Korea, he faced many hardships in his personal life but still performed his duties to the best of his abilities.  He feels that his discharge should be upgraded to fully honorable as he served his country of his own free will.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1 December 1971, 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 enlisted in the Regular Army (RA) for a period of 3 years on 7 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 62A (Engineering Equipment Mechanic).  He was honorably discharged on 2 December 1968 for the purpose of immediate reenlistment and executed a     3-year reenlistment on 3 December 1968.  The highest rank/grade the applicant attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records also show he served in Korea from on or about 13 July 1968 to on or about 25 May 1969 and in the Republic of Vietnam from on or about 10 July 1969 to on or about 5 September 1969.  His awards and decorations include the National Defense Service Medal, the Armed Forces Expeditionary Medal (Korea), the Vietnam Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16).  

4.  The applicant’s records reveal an extensive 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 24 August 1970, for being absent without leave (AWOL) during the period on or about 6 July 1970 through on or about 21 August 1970.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $50.00 pay for 2 months, and 45 days of extra duty; 

	b.  on 12 July 1971, for failing to go at the time prescribed to his appointed place of duty on or about 9 July 1971.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $48.00 pay (suspended for 3 months), 7 days of extra duty, and 7 days of restriction.  Additionally, on 26 July 1971, the portion of the punishment pertaining to a forfeiture of $48.00 pay (suspended for 3 months) was vacated and the unexecuted portion was ordered executed; 

	c.  on 3 August 1971, for failure to go at the time prescribed to his appointed place of duty on or about 2 August 1971.  His punishment consisted of a reduction to private (PVT)/E-1 (suspended for 90 days), a forfeiture of $44.00 pay for 1 month, 14 days of restriction (suspended for 90 days), and 14 days of extra duty (suspended for 90 days).  Additionally, on 1 September 1971, the portion of the punishment pertaining to a reduction to PVT/E-1 (suspended for 90 days),  14 days of restriction (suspended for 90 days), and 14 days of extra duty (suspended for 90 days), was vacated and the unexecuted portion was ordered executed; and


	d.  on 7 September 1971, for being AWOL during the periods on or about 1 September 1971 through on or about 3 September 1971 and on or about 7 September 1971 through on or about 9 September 1971.  His punishment consisted of a forfeiture of $44.00 pay for 1 month, 6 days of extra duty, and 6 days of restriction.

5.  On 26 November 1971, the applicant's immediate commander recommended the applicant be discharged from the Army under the provisions of Department of the Army (DA) Message 242110Z Sep 71, Subject: Extension of the Qualitative Management Program to Grade E-1 and E-2.  The immediate commander remarked that the applicant had consistently demonstrated poor job performance in his assignments and had been continually associated with a locally-printed radical newspaper.  Given his history of AWOL, failure to report, and other instances of NJP, the immediate commander recommended a General Discharge Certificate.

6.  On 26 November 1971, by endorsement, the applicant's immediate commander was notified that the applicant's discharge was approved under the provisions of DA Message 242110Z Sep 71 with the issuance of a General Discharge Certificate by reason of failure to demonstrate adequate potential for promotion advancement.  On 1 December 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows that he was discharged in the rank/grade of PVT/E-1 under the provisions of DA Message 242110 Sep 71 with a character of service of under honorable conditions (general).  This form further confirms he completed a total of 4 years, 1 month, and 21 days of creditable active military service and had 34 days of lost time. 

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge with that board's 15-year statute of limitations. 

8.  Army Regulation 600-200 (Enlisted Personnel Management), dated 24 March 1965, chapter 4 at the time, set forth policy and prescribed procedures for denying reenlistment under the Qualitative Management Program (QMP).  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to enhance quality of the career enlisted force, selectively retain the best qualified Soldiers to 30 years of active duty, deny reenlistment to nonprogressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service.  

9.  DA Message DAPE-MPP 242110Z Sep 71, in effect at the time, contained the Army policy that authorized the separation of enlisted personnel for failure to demonstrate adequate potential for promotion advancement.  

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation, which was further expanded by the DA Message 242110Z September 1971, provided authorization for separation for the convenience of the government.  It provided, in pertinent part, for a discharge based on failure to demonstrate promotion potential and meet acceptable standards for retention.  A general discharge under honorable conditions was normally issued.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's service in Korea and Vietnam is noted.  However, it is not sufficiently mitigating to grant him the requested relief.  The applicant's military service was tarnished by frequent acts of indiscipline ranging from failure to repair to being AWOL.  He was reduced in rank on three different occasions.  He failed to demonstrate efficiency and/or to develop his potential for further service and thus failed to establish his potential for advancement.  Accordingly, his chain of command requested his discharge. 

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the Army policy in effect at the time.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met, and that the applicant’s rights were fully protecting throughout his separation processing.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090008499





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ABCMR Record of Proceedings (cont)                                         AR20090008499



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