RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080002038 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).   

2.  The applicant states, in effect, that he was told that his discharge would be automatically upgraded to a GD or honorable discharge (HD) after 6 months.   

3.  The applicant provides a copy of his separation document (DD Form 214) 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 record shows that he enlisted in the Regular Army and entered active duty on 26 November 1971.  He was trained in and awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewmember), and private first class (PFC) is the highest rank he attained while serving on active duty.  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows that during his active duty tenure, he earned the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions.  


5.  On 8 March 1972, the applicant accepted NJP for failing to go to his appointed place of duty at the time prescribed.  His punishment for this offense was a forfeiture of $67.00 and 14 days of restriction and extra duty.  

6.  On 4 May 1972, the applicant accepted NJP for three specifications of failing to go to his appointed place of duty at the time prescribed.  His punishment for these offenses was a reduction to private/E-1 (PV1) and 7 days extra duty. 

7.  On 6 July 1972, the applicant accepted NJP for being absent without leave (AWOL) from 25 June through 6 July 1972.  His punishment for this offense was a forfeiture of $110.00 per month for two months. 

8.  On 28 December 1972, the applicant accepted NJP for wrongfully possessing marijuana.  His punishment for this offense was a reduction to private/E-2 (PV2), a forfeiture of $50.00, and 14 days extra duty. 

9.  On 8 November 1973, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 5 March through on or about 
6 November 1973.  

10.  On 11 November 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances that could lead to a bad conduct or dishonorable discharge, of the effects of a discharge request for the good of the service, and of the rights available to him.  Subsequent to this counseling, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 

11.  In his discharge request, the applicant acknowledged that he could receive an UD and that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both State and Federal law.  He further indicated that he understood he could encounter substantial prejudice in civilian life by reason of an UD.  The applicant submitted a statement supporting his discharge request in which he indicated that he did not like the Army and if he were retained, he would attempt to go AWOL the first change he got.  He further indicated that he understood what an UD was and that he would accept one to get out of the Army.  

12.  On 4 December 1973, the separation authority approved the applicant's request for discharge and directed he receive an UD.  On 7 December 1973, the applicant was discharged accordingly.  
13.  The DD Form 214 issued to the applicant upon his discharge shows he completed a total of 1 year, 3 months and 26 days of creditable active military service and that he accrued 256 days of time lost due to AWOL.  

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

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. 

16.  The same regulation states that an under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  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 honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was told his UD would be upgraded after 
6 months was carefully considered.  However, there is insufficient evidence to support this claim.  The Army does not now, nor has it ever had a policy providing for automatic discharge upgrades.  A discharge may be upgraded by the ADRB or this Board, if either Board believes an upgrade is justified to serve the interest of justice or equity.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  


3.  The record further shows that the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in his receiving a punitive discharge, only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving an UD.  The applicant also indicated that if he was required to stay in the Army, he would go AWOL the first chance he got.  

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition; however, it does reveal an extensive disciplinary history that includes his acceptance of NJP on four separate occasions.  The UD the applicant received was normal and appropriate under the regulatory guidance in effect at the time, and his undistinguished record of service clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.  

5.  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

ABCMR Record of Proceedings (cont)                                         AR20080002038


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508