IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012332 


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 be upgraded to honorable.

2.  The applicant states that he was treated unfairly and that his punishment was too severe for 1 day of being absent without leave (AWOL).

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as 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 was inducted into the Army of the United States on 16 November 1970.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 36C (Lineman).

3.  The applicant's military personnel records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 January 1971 and on 14 September 1971 for multiple periods of AWOL.

4.  On 7 September 1971, the applicant was transferred from Company C, 121st Signal Battalion, to Battery B, 6th Battalion, 67th Artillery, at Fort Riley, KS, as a rehabilitative transfer.

5.  A summary court-martial convicted the applicant of being AWOL from 15 November 1971 to 3 December 1971.

6.  In an undated statement apparently given to him when his commander notified him he was recommending his separation, the applicant acknowledged that his platoon sergeant, first sergeant, and battery commander had counseled him repeatedly for his failure to demonstrate the standards of acceptable conduct for members of the U.S. Army.  He acknowledged that discharge under these conditions would constitute a bar to reenlistment and that he would not be transferred to the U.S. Army Reserve.  He further acknowledged that he was counseled under the project transition initiative and indicated he had not received assistance and that he did not desire assistance.  He stated he did not intend to submit a written rebuttal and that he could receive an honorable or a general discharge under honorable conditions.

7.  On 17 March 1972, the applicant's immediate commander recommended the applicant be discharged from the Army under the provisions of DA message, dated 242110Z September 1971, subject:  Extension of the Qualitative Management Program to Grade E-1 and E-2.  The immediate commander stated that the applicant had a history of AWOL (37 days), that he was convicted by a summary court-martial for AWOL, and that he had accepted two NJPs for his various periods of AWOL.  The immediate commander recommended a General Discharge Certificate.

8.  On 28 March 1972, the separation authority directed that the applicant be discharged and issued a General Discharge Certificate due to failure to demonstrate adequate potential for promotion advancement.

9.  Accordingly, the applicant was discharged on 10 April 1972.  The DD Form 214 he was issued shows that he was discharged in the rank/grade of PVT/E-2 under the provisions of the DA message, dated 242110Z September 1971, with a character of service of under honorable conditions.  This form further confirms he completed a total of 1 year, 4 months, and 8 days of creditable active military service and had 37 days of lost time.

10.  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.

11.  Army Regulation 600-200 (Enlisted Personnel Management), chapter 4, in effect at the time, set forth policy and prescribed procedures for denying reenlistment under the Qualitative Management Program.  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 the 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.

12.  The DA message, dated 242110Z September 1971, 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.

13.  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, 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.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his punishment was too severe for 1 day of AWOL, yet the evidence of record shows he had 37 days of lost time due to multiple periods of AWOL.  Based on the summary court-martial conviction and his acceptance of two NJPs, the applicant's military service did not meet the acceptable standards of discipline expected of members of the Armed Forces.  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.

2.  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, it appears that all requirements of law and regulation were met, and that the applicant's rights were fully protected throughout his separation processing.

3.  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)                                         AR20090012332



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ABCMR Record of Proceedings (cont)                                         AR20090012332



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