IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080010398 


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, reconsideration of his previous request to upgrade his undesirable discharge (UD) to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he was not discharged by a general court-martial, but instead by a second lieutenant (2LT).  He also indicates he served some good time at Fort Polk, Louisiana, in the year 1969, and that he was drafted during a hardship when he had to take care and support his under age siblings.

3.  The applicant provides two letters of support, two character references and 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC90-07176 on 13 February 1991.  

3.  The applicant's military personnel records show he was inducted into the Army of the United States and entered active duty on 5 January 1969.  He completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Polk Louisiana.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he was promoted to the rank of private/E-2(PV2) on 6 May 1969, and this is the highest rank he held while serving on active duty.  

5.  An Insert Sheet (Record of Court-Martial Conviction (DA Form 20B)) to the applicant's DA Form 20 shows that on 23 August 1969, a Summary Court-Martial (SCM) found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 7 June – 27 July 1969.  The resultant sentence was confinement at hard labor for one month, a forfeiture of $82.00 per month for one month, and reduction to private/E-1 (PV1).

6.  On 12 May 1971, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 14 October 1969 through on or about 13 August 1970, and from on or about 26 September 1970 through 10 February 1971.

7.  On 12 May 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were 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, under the provisions of Chapter 10, Army Regulation 635-200.  


8.  In his request for discharge, the applicant acknowledged he understood 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 also indicated he understood he could face substantial prejudice in civilian life because of an UD.

9.  On 26 May 1971, the separation authority approved the applicant’s request for discharge and directed that he receive an UD under the provisions of chapter 10, Army Regulation 635-200.  On 2 June 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 1 year, 5 months, and 16 days of creditable active military service and that he accrued 189 days of lost time due to being AWOL.  

10.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

11.  The applicant provides two letters of support from individuals who attest to the hardships he experienced during his military service.  He also provides two character references from individuals who state the applicant is a honest, hardworking, respectful and helpful man with good character.  All four individuals support his request for an upgrade of his UD.

12.  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.  Although the separation authority may authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the members record, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the issued of an UD was authorized.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his UD should be upgraded to an HD because his discharge was pushed by a 2LT and because he was drafted during a period of hardship were carefully considered.  However, there is insufficient evidence to support these claims.  

2.  Although the applicant's post service conduct, as attested to in the third-party statements that he provided is noteworthy, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel and being advised of his rights and the effects of an UD, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.

3.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UD the applicant received was normal and appropriate under the regulatory guidance, and given his extensive disciplinary history, his 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.

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.

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 to amend the decision of the ABCMR set forth in Docket Number AC91-07176, dated 19 February 1991.




      _______ _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)                                         AR20080010398



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ABCMR Record of Proceedings (cont)                                         AR20080010398



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