IN THE CASE OF:	  

		BOARD DATE:	    9 March 2010

		DOCKET NUMBER:  AR20090016036 


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 general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he had 45 days of accrued leave at the time his unit said he was absent without leave (AWOL).  He contends he missed his flight and was waiting on another flight and that he did not understand why his commander discharged him.

3.  The applicant provides no documentary 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.  Having prior inactive service in the Army National Guard, the applicant was involuntarily ordered to active duty on 24 August 1979 for a period of 21 months and 7 days.  He served as a cannon crewman.  He was honorably discharged on 28 May 1981.  On 29 May 1981, he enlisted in the Regular Army for a period of 6 years.

3.  On 15 March 1982, nonjudicial punishment was imposed against the applicant for assaulting a female.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 6 July 1982, nonjudicial punishment was imposed against the applicant for making a false official statement.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  On 16 June 1983, nonjudicial punishment was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty and one specification for being disorderly on base.  His punishment consisted of a reduction to E-3, a forfeiture of pay, and extra duty.

6.  On 29 September 1983, the applicant was counseled for being absent from the morning formation and road march formation, for missing the movement and road march, and for being disorderly.  He was advised that he had established a pattern of misconduct and that continued misconduct could lead to discharge.

7.  On 4 October 1983, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (pattern of misconduct).

8.  On 19 October 1983, the applicant consulted with counsel, requested representation by counsel, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected to submit a statement in his own behalf.  In summary, he stated that his discharge was inappropriate because he had not received adequate counseling and his discharge packet did not indicate a "pattern" of misconduct.  He stated that his discharge was initiated because of an incident in September when he was reported AWOL, that it was an honest mistake, and that his commander and first sergeant believed he had lied to them regarding his port call and scheduled leave.  He also claimed that the only counseling he received was on a general counseling form, dated 29 September 1983, and that during that counseling his battery commander stated that he had established a pattern of misconduct which could lead to discharge under the provisions of chapter 14.  He indicated that since his commander initiated the chapter 14 action on 4 October 1983, 5 days after the counseling session, and after he was informed that he was considered AWOL, it appeared that this counseling statement was drafted to support the chapter 14 action.

9.  On 7 November 1983, the separation authority approved the recommendation for discharge (misconduct - pattern of misconduct) and directed the issuance of a general discharge.

10.  Accordingly, the applicant was discharged under honorable conditions on 23 November 1983 under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct (minor disciplinary infractions).  He had served a total of 4 years, 2 months, and 26 days of creditable active service.  Item 17 (Days Accrued Leave Paid) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "45."  His DD Form 214 also shows he had lost time during the period 23 September 1983 to 26 September 1983.

11.  On 28 August 1984, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's contention that he had 45 days of leave accrued at the time his unit said he was AWOL.  Item 17 of his DD Form 214 shows he was paid for 45 days of accrued leave at the time of his discharge on 23 November 1983.

2.  The applicant's record of service included three nonjudicial punishments and 4 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the 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)                                         AR20090016036



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ABCMR Record of Proceedings (cont)                                         AR20090016036



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