IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080005599 


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 Undesirable Discharge be upgraded to honorable.

2.  The applicant states, in effect, that his discharge be upgraded. 

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 16 August 1971, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of private first class/E-3.  

3.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 4 separate occasions for the offenses indicated:  11 September 1971, for disobeying a lawful order from a noncommissioned officer (NCO); 3 May 1972, for breaking a door to a barracks room; 28 November 1972, for contemptuously refusing to cooperate with an officer to maintain order and gather facts of a disturbance; and 15 June 1973, for failing to go to guard duty on 2 occasions and disobeying a lawful order from an NCO.

4.  On 20 November 1973, a special court-martial convicted the applicant of failing to go to formation.  The resultant sentence included a forfeiture of $90.00 and 20 days restriction. 

5.  The applicant's official record also shows he had 7 days of lost time.

6.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official records.  His DD Form 214 (Report of Separation from Active Duty) shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of for the good of the service – in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He completed 2 years, 8 months, and 
23 days of active duty service. 

7.  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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.


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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official record.     

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The charges against him are unknown; however, he would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  In the absence of evidence to the contrary, regularity is presumed in the discharge process.  

3.  The applicant did not provide any information regarding the nature of his discharge, and in view of his lengthy history of misconduct, there are no mitigating circumstances in evidence upon which to base a change in his discharge.  Given the foregoing, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel warranting an honorable discharge.

4.  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 any 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)                                         AR20080005599



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ABCMR Record of Proceedings (cont)                                         AR20080005599



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