IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013771 


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, 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 and entered active duty on 6 August 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 95B (Military Policeman).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

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

4.  On 14 February 1969, while at Fort Hood, TX, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order issued by a superior noncommissioned officer to get out of his bunk, dress, and be standing by on or about 14 February 1969.  His punishment consisted of 7 days of extra duty and a forfeiture of $26.00 pay (suspended for 60 days).

5.  On 1 March 1969, the applicant was reassigned to Fort Sam Houston, TX.  

6.  On 17 April 1969, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to report to his appointed place of duty on or about 15 April 1969.  His punishment consisted of 7 days of extra duty and 7 days of restriction. 

7.  On 12 May 1969, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to his unit on 11 June 1969.

8.  On 11 July 1969, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period from on or about 12 May 1969 through on or about 11 June 1969.  The Court sentenced him to confinement at hard labor for 3 months, a forfeiture of $82.00 pay per month for 3 months, and a reduction to private (PVT)/E-1.  The sentence was adjudged on 11 July 1969 and was approved on 31 July 1969.

9.  The applicant's records reveal acceptance of more NJP under the provisions of Article 15 of the UCMJ as follows:

	a.  On 13 November 1969, for being AWOL during the period from on or about 11 November 1969 through on or about 13 November 1969.  His punishment consisted of 14 days of extra duty, 14 days of restriction, and a forfeiture of $57.00 pay. 

	b.  On 2 December 1969, for being AWOL during the period from on or about 28 November 1969 through on or about 29 November 1969.  His punishment consisted of 14 days of extra duty and 14 days of restriction.

	c.  On 15 April 1970, for absenting himself from his appointed place of duty on or about 8 April 1970.  His punishment consisted of a forfeiture of $20.00 pay, a reduction to private (PV2)/E-2, 14 days of extra duty, and 14 days of restriction.

	d.  On 10 August 1970, for being AWOL during the period from on or about 28 July 1970 through on or about 30 July 1970.  His punishment consisted of a forfeiture of $35.00 pay, 7 days of extra duty, 7 days of restriction, and a reduction to PVT/E-1. 

10.  On 17 December 1970, the applicant pled guilty at a Summary Court-Martial to two specifications of being AWOL during the periods from on or about 12 October 1970 through on or about 23 October 1970 and on or about 24 October 1970 through on or about 16 November 1970.  The Court sentenced him to a reduction to PVT/E-1, a forfeiture of $88.00 pay, and confinement at hard labor for 30 days (suspended for 3 months).  The sentence was adjudged and was approved on 17 December 1970.

11.  The applicant's records show he was discharged on 6 January 1971.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged by reason of expiration of his term of service in the rank/grade of private (PVT)/E-1 with service characterized as under honorable conditions.  This form further confirms the applicant had completed a total of 2 years and 25 days of creditable active military service and he had 129 days of lost time.

12.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 2 of that regulation provides, in pertinent part, that an enlisted member of the Army may be discharged when his/her term expires.  

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 (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 type and character of separation issued upon release from service will be determined solely be the member's military record during the period of enlistment/induction, which record includes a member's military behavior and performance of duty.   The evaluation of an individual's conduct and service is based on his/her overall period of current service.  

3.  In the applicant's case, the evidence of record shows his 2 years and 25 days of military service did not meet the standards of acceptable conduct and performance of duty for Army personnel as evidenced by his extensive history of misconduct that included two instances of courts-martial, six instances of NJP, confinement, AWOL, reduction, and overall unsatisfactory conduct.  

4.  An honorable discharge is a separation with honor.  The issuance of an honorable discharge is conditioned upon proper military behavior and proficient performance of duty during the member's enlistment or period of service with due consideration to other factors such as length of service, grade, and general aptitude.  When a member has served faithfully and performed to the best of their ability and has been cooperative and conscience in doing their assigned tasks, it is the pattern of behavior and not an isolated incident which should be considered the primary factor in determining the character of service to be awarded.  In the applicant's case, his pattern of misconduct precludes awarding him an honorable discharge. 

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090013771



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ABCMR Record of Proceedings (cont)                                         AR20090013771



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