IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080012073 


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 to an honorable discharge (HD).

2.  The applicant states, in effect, that his ability to serve was impaired by his youth and immaturity, and since his discharge, he has been a good citizen.  He also states that his record of non-judicial punishment (NJP) indicates only isolated or minor offenses, and he now requests that his UD be upgraded to an HD because it is an injustice for him to continue to suffer the adverse consequences of an UD.

3.  The applicant provides third party statements 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 initially enlisted into the Regular Army and entered active duty on 30 October 1970, and was trained in and awarded military occupational specialty (MOS) 36K (Field Wireman).  On 26 September 1973, he was honorably discharged for the purpose of immediate reenlistment, and on 
27 September 1973, he reenlisted for 3 years.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was promoted to specialist four (SP4) on 22 June 1973, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced for cause on four separate occasions between 26 July 1974 and his final reduction to private/E-1 (PV1) on 27 August 1976.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  His disciplinary history include his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following seven separate occasions for the offenses indicated:  10 June 1971, for being absent without leave (AWOL); 5 October 1971, for failure to go to his prescribed place of duty at the time prescribed; 26 January 1973, for disobeying a lawful order; 
25 July 1974, for disobeying a lawful order; 11 November 1974, for willfully disobeying a lawful order; 19 December 1974, for wrongfully using marijuana; and 22 October 1975, for wrongfully possessing marihuana.   

5.  On 25 November 1975, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant based on his record of NJP.  The commander stated that in addition to the applicant's record of NJP, he had recently been identified as a drug abuser, and had received numerous counseling sessions, to which his response was very slow.  He further stated that in spite of the applicant's considerable time in service, he had not demonstrated the ability or the desire to advance into the Noncommissioned officer (NCO) Corps and/or to fulfill the leadership requirements demanded of an individual with his time in service and experience.  The appropriate authority approved the applicant’s bar to reenlistment, and on 25 November 1975, the applicant acknowledged receipt and elected neither to appeal the bar nor to submit a statement in his own behalf.  

6.  On 1 July 1976, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violation of Article 134 of the UCMJ wrongfully possessing and using marijuana.  


7.  On 19 July 1976, 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.  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. 

8.  On 27 August 1976, the separation authority approved the applicant’s request for discharge, and directed that he receive an UD. On 7 September 1976, 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, 11 months, and 11 days of creditable active military service.

9.  On 30 July 1982, 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.  

10.  The applicant provides third-party statements from a Career Initiative Center Program Manager, Instructor, and Job Developer, who all state that the applicant has a positive attitude and is a hard worker, fast learner, and very dependable.  

11.  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 youth an immaturity impaired his ability to serve and that he has been a good citizen since his discharge was carefully considered.  However, the record confirms the applicant served for nearly 3 years and demonstrated he had the maturity to serve successfully, as demonstrated by his completion of training and advancement to SP4 prior to committing the misconduct that led to his discharge.  Further, while his post service conduct, as attested to in the third-party statements provided, is noteworthy, this factor alone is not sufficiently mitigating to warrant granting the requested relief.  

2.  By regulation, the separation authority may authorize a GD or HD if such was merited by the member's overall record of service; however, an under other than honorable conditions discharge is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200.  In this case, the applicant's 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, the applicant's record provided no basis for the separation authority to support the issue of a GD or HD at the time of his discharge, nor does it support an upgrade of his discharge 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 in effect at the time, and accurately reflected the applicant's overall record of service.  

5.  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)                                         AR20080012073



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ABCMR Record of Proceedings (cont)                                         AR20080012073



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