IN THE CASE OF: BOARD DATE: 25 February 2010 DOCKET NUMBER: AR20090016525 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 undesirable discharge (UD) be upgraded to an honorable discharge (HD). 2. The applicant states he was unable to adjust to military life. He states he went to visit his pregnant girlfriend and the baby died. After he got himself together, he called his duty station and told them he would report back, which he did. He claims there was no disciplinary action taken and he served no time in confinement. 3. The applicant provides a self-authored statement and a third-party statement from his pastor 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. The applicant's military record is not available to the Board for review. However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case. This case is being considered primarily using the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 3. The applicant's DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the convenience of the government in lieu of trial by court-martial on 18 October 1971. It further shows that at the time of his discharge he held the rank of private/E-1 and had completed a total of 10 months and 7 days of creditable active military service. 4. The applicant's DD Form 214 also shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure and that he accrued a total of 309 days of lost time during the following two separate periods of unauthorized absence: 14 August 1970 through 19 May 1971 and 6 July 1971 through 8 August 1971. 5. The applicant provides a letter from his pastor who indicates she has known the applicant for 10 years. She claims the applicant is very respectful and hard working and her family appreciates the applicant for who he is. She claims the applicant has been a tremendous help in her ministry. 6. 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An under conditions other than honorable discharge is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. At the time, an undesirable discharge was normally given. However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment. An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 7. Paragraph 3-7a of the same regulation provides that an HD 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. 8. Paragraph 3-7b of the same regulation provides that a GD 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 HD. 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's contentions that his discharge should be upgraded because he reported back after he got his head together and no disciplinary or confinement action was taken and the third-party statement he provided were carefully considered. However, these factors alone are not sufficiently mitigating to support granting the requested relief. 2. The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant's final discharge processing. However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's final discharge. Therefore, government regularity in the discharge process is presumed. 3. The applicant's DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial. In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice. Procedurally, members against whom court-martial charges are preferred and who desire to voluntarily request discharge are required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial. 4. Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 5. The available evidence indicates the applicant voluntarily requested discharge to avoid a trial by court-martial that could have resulted in receiving a punitive discharge. The UD he received was normal and appropriate under the regulatory guidance and his overall record of service was not sufficiently meritorious to support the separation authority issuing a GD or HD at the time of discharge, nor does it and/or his post-service conduct as outlined in the supporting third-party statement support an upgrade now. 6. 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 this requirement. 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) AR20090016525 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090016525 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1