BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090014202 


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 a general discharge.

2.  The applicant states that he completed a total of 2 years, 3 months, and 15 days of active duty and feels he should be entitled to a general discharge.  He adds that he always performed his duties well and the Board should check his records.  He had accelerated advancements to private (PV2)/E-2 and private first class (PFC)/E-3, received a letter of commendation, received a high score on the physical fitness test, and performed well overall during his first two years as his record reflects.  However, when he started having marital problems, he started making bad choices, one of which was going in an absent without leave (AWOL) status; yet, he turned himself in with an intention of receiving a general discharge. 

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 enlisted in the Regular Army for a period of 3 years on 28 January 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  He was advanced to PV2/E-2 on 21 March 1974, PFC/E-3 on 17 May 1974, and specialist four (SP4)/E-4 on 30 May 1975. 

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 7 January 1975, for being absent from assigned place of duty (guard duty) on or about 28 December 1974.  His punishment consisted of a forfeiture of $26.00 pay and 10 days of extra duty, 

	b.  on 19 February 1975, for being absent from his appointed place of duty on or about 6 February 1975.  His punishment consisted of a reduction to PV2/E-2 (suspended for 30 days), a forfeiture of $39.00 pay, and 8 days of extra duty;

	c.  on 24 November 1975, for failing to go at the time prescribed to his appointed place of duty on or about 18 November 1975 and remaining so absent until on or about 19 November 1975.  His punishment consisted of a forfeiture of $50.00 pay and 7 days of extra duty, 

	d.  on 19 February 1975, for failing to go at the time prescribed to his appointed place of duty on or about 30 October 1975.  His punishment consisted of a reduction to PFC/E-3 (suspended for 30 days), a forfeiture of $69.00 pay, and 14 days of extra duty; and

	e.  on 10 February 1976, for willfully disobeying a lawful order from a superior commissioned officer to remain in the Regimental Guard House on or about 3 February 1976.  His punishment consisted of a reduction to PFC/E-3 (suspended for 30 days), a forfeiture of $102.00 pay (suspended for 30 days), 14  days of extra duty, and 14 days of restriction.



4.  On 10 August 1976, the applicant pled not guilty at a special court-martial to two specifications of being AWOL during the period from on or about 14 May 1976 through on or about 15 June 1976 and during the period from on or about 18 June 1976 through on or about 27 July 1976.  The Court found him guilty of both specifications and sentenced him to a reduction to the lowest enlisted grade, a forfeiture of $100.00 pay for 4 months, and confinement at hard labor for 105 days.  The sentence was adjudged on 10 August 1976 and was approved on 25 August 1976.

5.  On 11 October 1976, the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of misconduct-frequent incidents of discreditable nature.  The immediate commander further recommended an under other than honorable conditions character of service.

6.  On 12 October 1976, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200.  He further waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected to submit a statement in his own behalf.  In his statement, the applicant chronicled his military service, accelerated promotion, the reasons for each instance of NJP and/or AWOL, and indicated that he wanted out of the Army as soon as possible so he could take care of his family.

7.  The applicant further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that in the event of the issuance of an undesirable 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 may encounter substantial prejudice in civilian life.

8.  On 12 October 1976, the applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of misconduct.  Specifically, the immediate commander cited the applicant's frequent incidents of discreditable nature including his NJPs and/or AWOL.  The immediate commander further stated that the applicant was reassigned to the brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well trained Soldier with improved attitude and motivation.  However, his actions, behavior, attitude, and ability precluded accomplishment of this objective.  He had demonstrated little desire to return to duty and received multiple counseling by various members of the chain of command.  His record and failure to react constructively to the rehabilitation program indicated that he should not be retained in the service.  

9.  On 12 October 1976, the applicant's intermediate commander concurred with the immediate commander's recommendation and also recommended approval of the applicant's discharge for misconduct.

10.  On 19 October 1976, the separation authority waived further rehabilitative requirements and approved the applicant's discharge under the provisions of paragraph 13-5a of Army Regulation 635-200 by reason of misconduct and that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 27 October 1976.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 2 years, 3 months, and 15 days of creditable active military service and had 167 days of lost time.

11.  On 12 May 1980, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for misconduct.  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.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

13.  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.

14.  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 undesirable discharge should be upgraded.

2.  The applicant's records reveal a history of misconduct which includes one instance of a court-martial and five instances of NJP.  He was provided with multiple counseling and/or opportunities for rehabilitation by various members of his chain of command but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.  

3.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  The applicant's accelerated advancements were noted and his overall service record was considered.  However, he has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  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 did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence to grant the applicant's requested relief in this case.

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)                                         AR20090014202



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ABCMR Record of Proceedings (cont)                                         AR20090014202



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