IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009502 


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 be upgraded to a general discharge.

2.  The applicant essentially states that he was told that he would receive a general discharge under honorable conditions, and that he never received any paperwork of any kind, and that all he knows is that he was sent back stateside from Germany.  He also states, in effect, that he feels that he is entitled to a pension and benefits because he was never told why his unit sent him back to the United States from Germany, and that he did not have a court-martial or anything of any kind.  He further states that all of his life he has never had anything, and still does not have anything.  He continued by essentially stating that if the Army Board for Correction of Military Records (ABCMR) denies his request to upgrade his discharge and his request for a pension that it is just like using a person for nothing.  He also states that he does not have any records of any kind to send, but would appreciate it if the ABCMR made the right decision which would benefit him.  He also reiterates that he feels that he is entitled to these benefits.

3.  The applicant provides an undated, self-authored statement and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 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 records show that he was inducted into the Army of the United States on 11 March 1971.  He completed basic and advanced individual training and was awarded military occupational specialty 36K (Field Wireman).  He then departed for a tour in Germany on 28 July 1971.

3.  On or about 20 October 1971, the applicant was informed that charges had been preferred against him for unlawfully striking two Soldiers on the head with a club approximately 2 inches in diameter and 29 inches long on or about 
18 October 1971; offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. 

4.  On an unknown date, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.

5.  On 22 November 1971, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), and acknowledged that he had not been subjected to coercion with respect to his request for discharge, and had been advised of the implications that were attached to it.  He also understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now named the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit statements in his own behalf, and indicated that he had retained a copy of his request for discharge.  The applicant's request for discharge also shows that he was advised by legal counsel of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or the effects of his request for discharge and the rights available to him.  

6.  On 30 November 1971, the proper separation authority approved the applicant's request for discharge under the provisions of Chapter 10, Army Regulation 635-200, and directed that he be issued an Undesirable Discharge Certificate.  He also directed that the applicant be reduced to the rank and pay grade of private/E-1.  He departed Germany on or about 5 December 1971, and on 7 December 1971, he was discharged accordingly.

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

8.  The applicant essentially stated that he was told that he would receive a general discharge under honorable conditions, and that he never received any paperwork of any kind, and that all he knows is that he was sent back stateside from Germany.  He also stated, in effect, that he feels that he is entitled to a pension and benefits because he was never told why his unit sent him back to the United States from Germany, and that he did not have a court-martial or anything of any kind.  He further stated that all of his life he has never had anything, and still does not have anything.  He continued by essentially stating that if the ABCMR denies his request to upgrade his discharge and his request for a pension that it is just like using a person for nothing.  He also stated that he does not have any records of any kind to send, but would appreciate it if the ABCMR made the right decision which would benefit him.  He also reiterated that he feels that he is entitled to these benefits.

9.  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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

10.  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.

11.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge.

2.  The applicant's contentions that he was told that he would receive a general discharge and that he never received any paperwork of any kind was considered, but not found to have any merit.  The evidence of record clearly shows that the applicant acknowledged that if his request for discharge was accepted, he could receive an undesirable discharge, and that he retained a copy of his request for discharge.

3.  The applicant's contention that he is entitled to a pension and benefits was also considered, but rejected.  There is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that he should have been granted a pension or benefits.  The applicant also acknowledged in his request for discharge that if he was issued an undesirable discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  

4.  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.

5.  It is clear that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  Based on the applicant's record of indiscipline, which consisted of assaulting two Soldiers by hitting them in the head with a club, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080009502



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ABCMR Record of Proceedings (cont)                                         AR20080009502



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