IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020954 


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 discharge be upgraded to a fully honorable discharge.

2.  The applicant states it has been 32 years since he served and he believes he deserves an upgrade.  He had an unfortunate incident off post in Korea involving another Soldier where he was guilty by association. 

3.  The applicant did not provide any additional documentary evidence.

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 1 September 1977.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 76D (Materiel Supply Specialist).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records also show he served in Korea from on or about 
28 February 1978 to 30 September 1980.  He was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 28 February 1978, for being absent without leave (AWOL) during the period on or about 23 February through 27 February 1978.  His punishment consisted of a forfeiture of $50.00 pay. 

	b.  On 9 April 1979, for being disorderly on or about 29 March 1979.  His punishment consisted of a forfeiture of $50.00 pay and 14 days of restriction.

	c.  On 7 March 1979, for being AWOL during the period on or about 28 February through 2 March 1979 and for making several over-purchases during the month of December 1978.  His punishment consisted of a reduction to private/E-2, a forfeiture of $108.00 pay, and 14 days of restriction.

5.  On 17 April 1979, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his prior misconduct.  He remarked that the applicant had proven to be a problem and was clearly a substandard Soldier.  Further retention was not in the best interest of the Army.  The applicant elected not to submit a statement on his own behalf.  The bar was ultimately approved by his brigade commander.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was released under the provisions of chapter 2 of Army Regulation 635-200 (Personnel Separations) by reason of expiration of completion of required service (expiration term of service) in the rank/grade of private (PV1)/E-1 with service characterized as under honorable conditions.  This form further confirms the applicant had completed a total of 3 years and 24 days of creditable active military service and he had 9 days of lost time.


7.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 2 of that regulation provides, in pertinent part, that an enlisted member of the Army may be discharged when his/her term expires.  The version of the regulation in effect at the time of the applicant's discharge stated that a service of members discharged under this chapter will be characterized as honorable or under honorable conditions (unless an entry level separation is required).

9.  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 applicant contends his discharge should be upgraded.

2.  At the time, the character of service or type of discharge an individual that would be issued would be determined solely by the member's military record which included a member's military behavior and performance of duty.  The evaluation of an individual's conduct and service was based on his overall period of current service.  

3.  In the applicant's case, the evidence shows his military service did not meet the standards of acceptable conduct and performance of duty for Army personnel as evidenced by his extensive history of misconduct that included three instances of NJP, two instances of AWOL, a bar to reenlistment, and overall substandard performance.

4.  An honorable discharge is a separation with honor.  The issuance of an honorable discharge is conditioned upon proper military behavior and proficient performance of duty during the member's enlistment or period of service with due consideration to other factors such as length of service, grade, and general aptitude.  When members have served faithfully and performed to the best of their ability and has been cooperative and conscious in doing their assigned tasks, it is the pattern of behavior and not an isolated incident which should be considered the primary factor in determining the character of service to be awarded.  In the applicant's case, his pattern of misconduct precludes awarding him an honorable discharge. 

5.  In order to justify correction of a military record, the applicant must show, 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 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)                                         AR20090020954



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ABCMR Record of Proceedings (cont)                                         AR20090020954



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