BOARD DATE:	  22 September 2011 

		DOCKET NUMBER:  AR20110002638 


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, in effect, that his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was promised duty as a cook, but wound up as an infantryman.  He continues that he went absent without leave (AWOL) because he could not cope with being assigned to an infantry unit.  He states that he was asked if he wanted to get out of the military and he replied, "yes."  He states that he was a good Soldier during his first enlistment and his military records will so verify.

3.  He provides no additional documentation in support of this case; however, he refers to his prior service records.

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 military records show that he had two periods of active duty service.  His DD Form 214 (Report of Separation from Active Duty) for the period 30 December 1971 to 17 December 1973 shows he enlisted in the Regular Army (RA) for 2 years and training in military occupational specialty (MOS) 94B (Cook). He served as a cook and was honorably separated on 17 December 1973 in the rank and grade of specialist four (SP4)/E-4.

3.  He again enlisted in the RA for 3 years on 15 March 1977.  He specifically enlisted for combat arms unit of choice, assignment to the 9th Infantry Division, and MOS 11B (Infantryman).  He successfully completed basic training and infantry advanced individual training and was awarded MOS 11B. His enlistment contract did not indicate he was made any other promises.

4.  On 16 March 1978, he was convicted, pursuant to his pleas, by a special court-martial of being AWOL for the period 1-23 February 1978.  His sentence consisted of reduction to the lowest enlisted grade, a forfeiture of $265.00 pay per month for 3 months, and confinement at hard labor for 3 months.

5.  On 10 October 1978, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to be at his appointed place of duty.

6.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 214 shows that he was discharged on 20 December 1978 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct - pattern of misconduct, with a characterization of service of under other than honorable conditions.  The applicant completed 1 year, 7 months, and 15 days of creditable active service with 51 days lost time due to AWOL and confinement during the period under review.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

8.  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.  

9.  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.  

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant's conduct and achievements during his prior period of service acceptable.  However, good prior service, conduct and achievement alone are not a basis for upgrading a discharge.  His prior service was not sufficiently meritorious as to mitigate his indiscipline during his second enlistment.

2.  The applicant contends he was promised duty as a cook.  However, he specifically enlisted for combat arms unit of choice, assignment to the 9th Infantry Division, and MOS 11B (Infantryman).  There was nothing in his enlistment contract to indicate he was promised he would perform duties as a cook.  

3.  His records show that he had one instance of a lengthy AWOL; he was convicted by a special court-martial; and he received one Article 15.  He had completed 1 year and 7 months, and 15 days of creditable service on his 3-year term of service before his separation with a total of 51 days of lost time due to AWOL and confinement.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.


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)                                         AR20110002638





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ABCMR Record of Proceedings (cont)                                         AR20110002638



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