IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090014426 


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 honorable.

2.  The applicant states that he wants his discharge upgraded so that he may be buried with military honors.  He states that he had a clean service record until 
2 months prior to his discharge.

3.  The applicant provides no additional documentation 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.  On 19 March 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  On 21 July 1980, the applicant was assigned for duty as a wrecker operator with the 26th Supply and Service Company, located in the Federal Republic of Germany.

4.  On 30 April 1982, the applicant was promoted to specialist four, pay grade 
E-4.

5.  On 25 April 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the time prescribed.  The punishment included reduction to pay grade E-3 and a forfeiture of $171.00 pay per month for 
1 month.  The applicant appealed the punishment.  On 3 May 1983, the entire punishment was set aside.

6.  On 19 January 1984, the applicant accepted NJP for being absent without leave (AWOL) during the period 12 December 1983 through 10 January 1984. The punishment included a reduction to pay grade E1 and 30 days extra duty. The applicant did not appeal the punishment.

7.  A DA Form 4126 (Bar to Reenlistment Certificate), dated 13 February 1984, shows that the applicant's commander initiated his recommendation based on the following:

	a.  19 January 1983:  Collection action required due to duplicate payment;

   b.  14 March 1983:  Arrested for driving under the influence;

	c.  14 March 1983:  Unpaid debt that had to be deducted from his pay;

	d.  25 April 1983:  NJP for failure to go to his appointed place of duty;	

   e.  30 July 1983:  Arrested for driving under the influence and speeding;
   
   f.  19 September 1983:  Collection action required due to duplicate payment; and
   
   g.  30 September 1983:  Arrested for driving under the influence with a suspended driver's license and carrying a concealed weapon.
   
8.  On 13 February 1984, the appropriate authority approved the bar to reenlistment.

9.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows the following:

	a.  30 September to 6 October 1983:  civilian confinement;

	b.  12 December 1983 to 10 January 1984:  AWOL;

	c.  24 January to 1 March 1984:  AWOL and civilian confinement;

	d.  5 March 1984:  AWOL;

	e.  7 and 8 March 1984:  civilian confinement;

	f.  13 and 14 March 1984:  AWOL; and 

	g.  22 to 25 March 1984:  AWOL.

10.  The discharge packet is missing from his military records.  However, his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was administratively discharged on 16 April 1984, under the provisions of Army Regulation 600-200, chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions.  He had completed 
3 years, 9 months, and 24 days of creditable active service and had 84 days of lost time due to AWOL and confinement.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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 discharge should be upgraded so that he may be buried with military honors because he had a clean service record with no disciplinary actions until the last 2 months prior to his discharge.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The available evidence of record clearly shows that the applicant's misconduct began more than a year prior to his discharge. 

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant's desire to obtain veterans burial benefits is not justification for an upgrade of his discharge.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20090014426





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ABCMR Record of Proceedings (cont)                                         AR20090014426



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