BOARD DATE:	  March 4, 2010

		DOCKET NUMBER:  AR20090015986 


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 10 July 1972 DD Form 214 (Report of Separation from Active Duty) be upgraded to honorable.

2.  The applicant states that his mistakes and errors in judgment have been corrected.  He adds that he is now a successful citizen and a mentor to individuals who are in need of leadership.

3.  The applicant provides his reduction and discharge orders.

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 record shows he enlisted in the Regular Army on 10 February 1969.  He was honorably discharged for immediate reenlistment on 25 August 1970 after serving 1 year, 6 months, and 16 days.  On 26 August 1970, the applicant reenlisted.

3.  On 20 February 1970, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of forfeiture of $15.00 pay and extra duty for 7 days.

4.  On 9 November 1971, NJP was imposed against the applicant for being absent without authority from 8 November 1971 to 9 November 1971.  His punishment consisted of forfeiture of $25.00 pay per month for one month.

5.  On 7 February 1972, NJP was imposed against the applicant for wrongfully and unlawfully rendering an "insufficient funds" check and for failing to go to his appointed place of duty.  His punishment consisted of an oral reprimand, forfeiture of $90.00 pay per month for one month, and restriction and extra duty for 14 days.

6.  The applicant submitted a copy of an order dated 6 July 1972 that shows he was reduced from grade specialist five (SP5)/E5 to private (PV1)/E1.  Additionally, separation orders dated 10 July 1972 show that the applicant was discharged under other than honorable conditions on 10 July 1972 for the good of the service.

7.  The charge sheet or the facts and circumstances pertaining to the applicant’s discharge proceedings in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), were not contained in his military records.

8.  The applicant's DD Form 214 shows that he was discharged on 10 July 1972 for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10.  The applicant had 3 years, 4 months, and 24 days of total active service with 6 days listed as lost time under Title 10, U.S. Code, section 972.

9.  The Army Discharge Review Board (ADRB) upgrade d the applicant's discharge to general on 13 June 1977 under the Special Discharge Review Program (SDRP).  The discharge was affirmed on 24 July 1978 under the provisions of Public Law 95-126.  There is no indication that the applicant applied to the ADRB for an upgrade of his general discharge to honorable within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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's argument that his discharge should be upgraded because he has corrected his mistakes and errors in judgment and is now a successful citizen was considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

2.  Although a copy of the applicant's chapter 10 discharge packet is not in his file, the presumption of regularity must be applied.  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 that requirement.

3.  The applicant's record of service included three Article 15s.  The applicant's discharge under chapter 10, Army Regulation 635-200 also indicates that he voluntarily requested discharge in lieu of a court-martial, although the specific offense(s) are unknown.  Additionally, the evidence of record shows that the applicant's discharge was upgraded to general under the SDRP.  Nevertheless, 
based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis for granting the applicant's 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)                                         AR20090015986





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ABCMR Record of Proceedings (cont)                                         AR20090015986



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