IN THE CASE OF:	  

		BOARD DATE:	  7 August 2008

		DOCKET NUMBER:  AR20080006902 


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.

2.  The applicant states, in effect, that he had no understanding or knowledge in military ways when he enlisted into the Army.  He indicates that he thought enlisting was a way for him to escape his responsibilities of growing up in home that had too many rules.  He states he now knows that based on the things he did, he not only did a grave injustice to the military, but also to his country.  He also states that now, after all of these years of taking on real responsibilities in the work place and in his own home, he wishes to apologize for that part of his life.  He claims that had he known then what he now knows, he would have been the best person he could have been.  He further states that he has felt so ashamed for his actions while in the Army that he never considered trying to change his status, but he now knows he must ask for forgiveness because he is now an Ordained Minister.

3.  The applicant provides his separation document (DD Form 214) and an Application for the Review of Discharge or Dismissal (DD Form 293) 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 he enlisted into the Regular Army and entered active duty on 30 January 1969.  He was trained in and awarded military occupational specialty (MOS) 16D (Missile Crewman).  His record shows the highest grade he attained while serving on active duty was private first class (PFC).  The record documents no acts of valor, significant achievement or service warranting special recognition.  

3.  On 20 July 1970, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.  His punishment for this offense was a forfeiture of $35.00 and 7 days of extra duty.

4.  On 2 September 1970, the applicant accepted NJP for being absent from his appointed place of duty.  His punishment for this offense was a forfeiture of $25.00 and 14 days of extra duty and restriction.

5.  On 3 October 1970, the applicant accepted NJP for assaulting another Soldier.  His punishment for this offense was a forfeiture of $50.00 and a reduction to private/E-2 (PV2).

6.  On 29 October 1970, the applicant accepted NJP for being absent without leave from 23 through 24 October 1970.  His punishment for this offense was a forfeiture of $35.00 and 6 days of extra duty.

7.  On 22 December 1970, the applicant accepted NJP for failure to be at his appointed place of duty at the prescribed time.  His punishment for this offense was a reduction to private/E-2 (PV2) and 14 days of restriction.

8.  A Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violation of Articles 86 and 128 of the UCMJ as follows:  Article 86, by being AWOL from on or about 6 November until on or about 2 December 1970; and Article 128, by assaulting another Soldier. 

9.  On 6 January 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  

10.  In his request for discharge, the applicant acknowledged that he understood that if his discharge request was approved, 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD and elected not to submit a statement on his own behalf. 

11.  On 7 January 1971, the unit commander recommended approval of the applicant's request for discharge under the provisions of Chapter 10, and requested the applicant receive an UD.  The unit commander stated that the applicant had neither respect nor a concept of military authority or personal responsibility, that his duty performance had been extremely sub-standard, and that his rehabilitative potential was negligible.  Along with the charged offenses, the commander cited the applicant's frequent AWOLs, broken restrictions, missed bed checks, uniform violations, and failure to prepare properly for unit training activities as the basis for his UD recommendation.  

12.  On 25 February 1971, the separation authority approved the applicant’s request for discharge, and directed that he receive an UD. On 1 March 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that at the time, he had completed a total of 2 years and 1 month of creditable active military service.

13.  On 8 July 1981, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable, and it voted to deny his request for a change to the characterization of his service and/or to the reason for his separation.  
14.  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.  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 UD.  The separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD be upgraded because at the time he had no understanding of the military ways and based on his post service conduct was carefully considered.  However, by regulation, an under other than honorable conditions discharge, or UD at the time of the applicant's discharge, is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200.  However, the separation authority may authorize a GD or HD if such was merited by the member's overall record of service. 

2.   In the applicant's case, his record is void of any acts of valor, significant achievement, or service warranting special recognition, and it reveals an extensive disciplinary history.  As a result, his record provided no basis for the separation authority to support a GD or HD at the time of his discharge, nor does it support an upgrade at this time. 

3.  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, he voluntarily requested discharge 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. 

4.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UD, which was consistent with regulatory policy.  


5.  The applicant's post-service conduct and accomplishments, including his becoming an Ordained Minister are noteworthy.  However, absent any distinguishing military service, this factor along is not sufficiently mitigating to support granting the requested relief.  Finally, it is concluded that the applicant's discharge accurately reflects his overall record of service.  

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)                                         AR20080006902



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ABCMR Record of Proceedings (cont)                                         AR20080006902



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