IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080012348 


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. 

2.  The applicant states, in effect, that for 11 years he provided impeccable service to his country.  The applicant continues that he has terminal cancer and needs burial benefits. 

3.  The applicant provides copies of a self-authored letter, dated 23 June 2008; two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 4 February 1964 and 28 April 1969; one DD Form 214 (Report of Separation from Active Duty), dated 2 May 1975; and an Illinois Department of Health Uniform Do-Not-Resuscitate (DNR) Order Form, dated 15 July 2008, 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 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 was inducted into the Army of the United States on 20 September 1962.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).  On 4 February 1964, he was honorably discharged for the purpose of immediate reenlistment.  

3.  The applicant reenlisted in the Regular Army on 5 February 1964 for a period of six years.  On 28 April 1969, he was honorably discharged for the purpose of immediate reenlistment.  The applicant reenlisted in the Regular Army on 29 April 1969 as a Light Weapons Infantryman.  

4.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 June 1972, for being absent without leave (AWOL) without authority from his unit during the period 22 June 1972 to 26 June 1972.  His punishment consisted of a forfeiture of $100.00 for one month and 14 days of extra duty.  

5.  On 17 July 1972, the applicant accepted NJP under Article 15, UCMJ for previous indulgence in intoxicating liquor and was incapacitated from performing his duties.  His punishment consisted of a forfeiture of $293.00 per month for two months (suspended for two months) and 30 days of extra duty.  

6.  On 5 February 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL from his unit during the period 30 January 1973 to 31 January 1973.  His punishment consisted of an oral reprimand and forfeiture of $50.00
per month for one month, suspended for 30 days.
 
7.  Headquarters, 2nd Brigade, 101st Airborne Division (Airmobile) Special Court-Martial Order Number 51, dated 12 July 1973, shows the applicant was found guilty of forging the signature of a Captain R_____ D. R_____ on two DA Forms 2142 (Request for Pay Action), dated 9 April 1973 and 16 April 1973.  The resultant sentence shows the applicant was reduced to the rank to staff sergeant/pay grade E-6.  The sentence was adjudged on 28 June 1973.

8.  On 22 July 1974, the applicant accepted NJP under Article 15, UCMJ for being AWOL from his unit during the period 1 July 1974 to 5 July 1974.  His punishment consisted of reduction to the rank of sergeant/pay grade E-5.  The 
applicant requested to appeal the action on 24 July 1974.  The record shows the applicant failed to meet the 15-day suspense date and the punishment was imposed without benefit of appeal. 

9.  The applicant's discharge packet is not available.  However, Headquarters 101st Airborne Division (Air Assault), Fort Campbell, Kentucky letter, Subject: Approval of Discharge UP [Under the Provisions of] Chapter 10, AR 635-200 [Personnel Separations], dated 28 April 1975, shows that the applicant's request for discharge for the good of the service was approved with issuance of an undesirable discharge.

10.  A Department of the Army, Headquarters 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, dated 30 April 1975, Special Orders Number 92 shows the applicant was to be effectively discharged on 2 May 1975 and issued an undesirable discharge.

11.  The applicant's DD Form 214, dated 2 May 1975 shows, in effect, he was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of trial by court-martial with an undesirable discharge.  This DD Form 214 shows the applicant completed 5 years, 9 months, and 8 days of active military service this period with 85 days of lost time due to AWOL.  

12.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) 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.

14.  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.
15.  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.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his final discharge should be upgraded because of 11 years of impeccable service to his country and the need for burial benefits. 

2.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record of service.

3.  Since separations under this provision of regulation are voluntary and the requestor must admit guilt to the charges against him, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his last period of service.  

4.  The applicant's record of service included four non-judicial punishments for various offenses which included several periods of being absent from his unit, 85 days of lost time due to being AWOL, and for being incapacitated from performing his duties [due to indulgence of intoxicating liquor]; and a Special Court-Martial, which found him guilty of forging two requests for pay claims.  Based on this record of indiscipline, 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 a general or an honorable discharge.

5.  The applicant's contentions have been noted; however, he has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to a general under honorable conditions.

6.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veterans Benefits.

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)                                         AR20080012348



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ABCMR Record of Proceedings (cont)                                         AR20080012348



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