IN THE CASE OF:	  

		BOARD DATE:  28 August 2012

		DOCKET NUMBER:  AR20120003245 


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 upgrade of his general discharge to an honorable discharge.

2.  He states his discharge was unjust.  He never had disciplinary action or charges preferred against him.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had lost time, which he made up with excess leave and annual leave.

3.  He provides:

* DD Form 214
* extract of DA Form 20 (Enlisted Qualification Record)
* Letter Orders Number 05-1094359 

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.  His military records show he was inducted into the Army of the United States on 7 June 1965.  He was awarded the military occupational specialty of 12A (Pioneer).  The highest rank/grade he held was private first class/E-3.

3.  He accepted nonjudicial punishment on three occasions between 4 November 1965 and 19 April 1967 for:

* being absent without leave (AWOL) from 3 October to 14 October 1965
* being absent without authority from his unit
* failing to go at the time prescribed to his appointed place of duty 

4.  His DA Form 20 shows he was stationed at Fort Benning, GA during the period 30 January to 16 June 1967.  During the period he received a conduct rating of "fair" and an efficiency rating of "good."

5.  On 16 June 1967, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) under the provisions of Army Regulation 635-200 (Personnel Separations).  He was given a Separation Program Number of 201 (Expiration Term of Service).  His DD Form 214 shows he completed 1 year, 11 months, and 28 days active military service.  It further shows he had 12 days of time lost and 9 days of excess leave.  His character of service was shown as under honorable conditions.

6.  Letter Orders Number 05-1094359, dated 26 May 1971, published by the Office of the Adjutant General, U.S. Army Administration Center, shows he was relieved from the USAR Control Group (Standby) and given a general discharge, effective 6 June 1971. 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 2, in effect at the time, stated that separation at expiration of term of service would be accomplished pursuant to the discharge order issued by the appropriate commander.

	b.  Chapter 1, in effect at the time, stated an honorable discharge was a separation with honor.  Issuance of an honorable discharge would be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment or current period of service with due consideration for the member's age, length of service, grade, and general aptitude.  Where a member had served faithfully and performed to the best of his ability and had been cooperative and conscientious in doing his assigned tasks, he could be furnished an honorable discharge.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A member would not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.

	(1) A member's service would be characterized as honorable by the commanding officer authorized to take such action or higher authority when a member was eligible for or subject to separation and it had been determined he merited an honorable discharge under the following standards:

		(a) Had conduct ratings of at least "Good."

		(b) Had efficiency ratings of at least "Fair."

		(c) Had not been convicted by a general court-martial.

		(d) Had not been convicted more than once by a special court-martial.

	(2) Notwithstanding the foregoing criteria, an honorable discharge could be furnished when disqualifying entries in the individual's military record were outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. 

8.  Department of Defense Financial Management Regulation, volume 7A, paragraph 010202C, states enlisted members must make up any lost time.

DISCUSSION AND CONCLUSIONS:

He contends he made up his time lost with excess leave and annual leave.  Making up his time lost is a requirement which does not mitigate the fact he received nonjudicial punishment on three occasions during his tenure of service for being AWOL, being absent without authority from his unit, and failing to go at the time prescribed to his appointed place of duty.  Therefore, based on the occurrences of his misconduct and a conduct rating of "Fair" during his last duty assignment there is an insufficient basis for upgrading his general discharge to an honorable discharge.


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)                                         AR20120003245



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ABCMR Record of Proceedings (cont)                                         AR20120003245



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