IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090017120 


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 general.

2.  The applicant states that the Department of Veterans Affairs has questioned why he did not sign his DD Form 214 (Report of Separation from Active Duty).

3.  In support of his application, the applicant provides a copy of his DD Form 214.

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 17 February 1976, the applicant enlisted in the Regular Army.  He was assigned to Fort Leonard Wood, Missouri, for one-station unit training as a combat engineer (12B).

3.  On 24 March 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for sleeping while on fire guard in the barracks.  The punishment included forfeiture of $30.00 pay per month for 1 month.

4.  On 4 June 1976, the applicant was assigned for duty as a bridge specialist with Company E, 7th Engineer Battalion, located at Fort Polk, Louisiana.

5.  On 27 September 1976, the applicant accepted NJP for being disrespectful in language.  The punishment included reduction to private/pay grade E-1 and forfeiture of $85.00 pay per month for 1 month.

6.  On 29 December 1976, the applicant accepted NJP for failure to obey a lawful order.  The punishment included forfeiture of $56.00 pay per month for 1 month and 7 days in the correctional custody facility.

7.  On 1 May 1977, the applicant was advanced to private first class/pay grade 
E-3.

8.  On 17 August 1977, the applicant accepted NJP for being absent without leave (AWOL) for 1 day.  The punishment included reduction to private, pay grade E-2 (suspended), forfeiture of $69.00 pay per month for 1 month, and 14 days of restriction and extra duty.

9.  On 29 August 1977, the applicant's commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5 (Expeditious Discharge), because of his poor attitude, lack of motivation and self discipline, failure to demonstrate promotion potential, hostility toward the Army, inability to accept instructions and directions, and for substandard performance.  The company commander recommended that he receive a General Discharge Certificate.

10.  On 8 September 1977, the battalion commander approved the recommendation and directed issuance of a General Discharge Certificate.  Subsequently, the applicant consented to the discharge and elected not to make a statement on his behalf.  His legal counsel indicated that the applicant had been advised of the basis for this discharge and its effect.  His rights were explained to him.

11.  On 17 April 1978, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period 12 September 1977 to 17 February 1978.

12.  On 21 April 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

13.  The applicant was placed on excess leave during the period 21 April 1978 through 17 May 1978.

14.  On 2 May 1978, the separation authority approved the applicant's request for discharge and directed that he be issued DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions).  On 18 May 1978, the applicant was discharged accordingly.  He had completed 1 year, 9 months, and 27 days of creditable active military service and had accrued 158 days of lost time due to AWOL.

15.  A review of the applicant's records shows that his DD Form 214 was not signed by the applicant.  Copy number 2 is blank in the area for his signature, while copies numbered 4, 5 ,7, and 8 contained the statement, "SEPARATEE NOT AVAILABLE FOR SIGNATURE."

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

17.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.
 
18.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

19.  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.

20.  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.  He also raises a concern about his missing signature on the DD Form 214.

2.  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.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  The available evidence indicates that the applicant was not available to sign the DD Form 214 because he was on excess leave at the time of his discharge.  

4.  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.

5.  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)                                         AR20090017120



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ABCMR Record of Proceedings (cont)                                         AR20090017120



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