BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090009868 


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

2.  The applicant states that he was told his discharge would be automatically upgraded after 7 years.  He contends that he has been making the right decisions to change his life for the past year.

3.  The applicant provides no documentary evidence in support of his 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 enlisted in the Regular Army on 18 January 1977 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 63C (track vehicle mechanic).

3.  On 9 May 1977, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of a forfeiture of pay and restriction.  

4.  On 17 August 1977, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation by driving a Government vehicle without a Government license.  His punishment consisted of a forfeiture of pay (suspended), correctional custody for 7 days, and extra duty.  On 3 September 1977, the suspended portion of the sentence was vacated.  

5.  On 5 December 1977, in accordance with his pleas, the applicant was convicted by a special court-martial of four specifications of being absent without leave (AWOL).  He was sentenced to be reduced to E-1, to forfeit $265 pay per month for 1 month, and to be confined at hard labor for 30 days.  On 
20 December 1977, the convening authority approved the sentence.

6.  On 10 January 1978, nonjudicial punishment was imposed against the applicant for being absent from his unit on 8 January 1978 (approximately 2 and 1/2 hours).  His punishment consisted of extra duty and restriction. 

7.  On 16 January 1978, nonjudicial punishment was imposed against the applicant for disobeying three lawful orders.  His punishment consisted of a forfeiture of pay. 

8.  On 17 January 1978, nonjudicial punishment was imposed against the applicant for disobeying a lawful command.  His punishment consisted of extra duty and restriction. 

9.  On 18 January 1978, the applicant's unit commander initiated action to discharge him under the provisions of Army Regulation 635-200, chapter 
13, paragraph 13-5, for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He cited that the applicant's conduct and efficiency were unsatisfactory and that he had received one special court-martial conviction and five nonjudicial punishments.

10.  On 18 January 1978, after consulting with counsel, the applicant waived consideration of his case by a board of officers and waived a personal appearance.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued and that he further understood that as the result of issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He elected to submit a statement on his own behalf.  In summary, he stated that he felt he had done his best, that he was AWOL because he did not receive some of his hard-earned checks, that he was trying to maintain and not go AWOL again, that he had bills to pay, that he felt that he had gotten himself in deep enough, that he was going to stick with this and hope for the best, that he had learned from his mistakes, and that he was hoping for a better discharge than he was getting.    

11.  The separation authority approved the recommendation for discharge and directed that the applicant be furnished a discharge under other than honorable conditions. 

12.  The applicant was discharged under other than honorable conditions on 
1 February 1978 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) , for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. He had served a total of 10 months and 5 days of creditable active service with 69 days of lost time due to AWOL and confinement.

13.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.    When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

15.  Chapter 14 of Army Regulation 635-200, effective 1 February 1978, provided for the elimination of enlisted personnel for misconduct.  It provided, in pertinent part, that patterns of misconduct included frequent incidents of a discreditable nature with civil or military authorities.  An under other than honorable conditions discharge was normally appropriate for a member who was discharged for acts patterns of misconduct.




16.  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.

17.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.    

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

4.  The applicant's record of service included five nonjudicial punishments, one special court-martial conviction, and 69 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general 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)                                         AR20090009868





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ABCMR Record of Proceedings (cont)                                         AR20090009868



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