IN THE CASE OF:	

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080011434


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 discharge be upgraded to honorable.

2.  The applicant states, in effect, that he received a special court-martial and the punishment of an under other than honorable conditions discharge, a forfeiture of $100 per month for 1 month, restriction for 30 days, and reduction to private first class (PFC/E-3) was too harsh.

3.  The applicant provides:

	a.  DD Form 214 (Report of Separation From Active Duty), effective 4 June 1975.  It shows a character of service of under other than honorable conditions, effected for the good of the service.

	b.  DD Form 493 (Extract of Military Records of Previous Convictions) showing a special court-martial conviction adjudged on 7 May 1975 sentencing him to reduction from specialist four (SP4/E-4) to PFC, restriction for 30 days, and a forfeiture of $100 pay per month for 1 month.

	c.  DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag)), dated 31 March 1975, because of pending court-martial charges.




	d.  Special Court-Martial Order Number 4, US Army Medical Department Activities, Fort Polk, LA, dated 20 May 1975.

	e.  DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction).

	f.  DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 20 April 1973, for dereliction of duty on 20 April 1973.  He was punished by a forfeiture of $30 pay per month for 1 month and 5 days of extra duty.

	g.  DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 16 December 1974, for disobeying a lawful order on 16 November 1974.  He was punished with 7 days of extra duty and 7 days of restriction.

	h.  DD Form 4 (Enlistment Contract – Armed Forces of the United States).

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 enlisted in the Regular Army for 3 years, on 5 October 1972.  He was honorably discharged on 7 July 1974 for the purpose of immediate reenlistment.  He reenlisted on 8 July 1974 for 3 years.

3.  The applicant disobeyed a lawful order on 16 November 1974 and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 16 December 1974.





4.  On 7 May 1975, the applicant was convicted by a special court-martial for failing to obey a lawful command of a major on 27 March 1975.  Contrary to his plea of not guilty, he was found guilty and sentenced to reduction from SP4 to PFC, a forfeiture of $100 pay per month for 1 month, and restriction for 30 days.

5.  At 1920 hours, on 24 May 1975, the applicant was apprehended by military police for allegedly assaulting the Charge-of-Quarters (CQ) after being confronted for not having signed-in at 1700 and 1800 hours, as he was ordered to do.

6.  Court-martial charges were preferred against the applicant; however, the charge sheet is unavailable.  On 30 May 1975, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In so doing, he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He indicated he would submit a statement in his own behalf; however, it is unclear if he did so as there is no statement in the record.

7.  On 3 June 1975, the approving authority approved the applicant's request for a chapter 10 discharge and directed that he be reduced to the lowest enlisted grade and separated with an undesirable discharge.

8.  The applicant was discharged on 4 June 1975.

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.  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.







DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to honorable.  He states his court-martial punishment was too harsh.

2.  The applicant was not separated by reason of a court-martial.  While it is true he was convicted and punished by a special court-martial on 7 May 1975, that conviction was not the single factor for him receiving an undesirable discharge on 4 June 1975.

3.  The applicant had a history of frequent acts of misconduct.  He had a court-martial conviction and two records of nonjudicial punishment under Article 15, Uniform Code of Military Justice.  On 24 May 1975, he assaulted his unit CQ, was apprehended by military police, and had court-martial charges preferred against him.

4.  The applicant requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His request was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

5.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. 

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)                                         AR20080011434



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ABCMR Record of Proceedings (cont)                                         AR20080011434



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