IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012943 


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, an upgrade of his undesirable discharge (UD).

2.  The applicant states, in effect, that he has been a good citizen for the past thirty-seven years and feels he should be pardoned.

3.  The applicant provides a copy of his resume 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.  The applicant's military personnel records show he was inducted into the Army of the United States and entered active duty on 19 September 1969.  He completed basic combat training at Fort Campbell, Kentucky, and he was assigned to Fort Knox, Kentucky, to attend advanced individual training (AIT) on 24 November 1969.

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he never advanced beyond the rank of private/E-1(PV1) while serving on active duty.  Item 21 (Time Lost Under Section 972, Title 10, United States Code) shows he was absent without leave (AWOL) during the following three separate periods:
16 January - 10 February 1970; 3 March - 9 October 1970; and 3 January -
25 January 1970.

4.  The applicant’s record also shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 February 1970, for being AWOL from on or about 16 January through on or about 11 February 1970.  His punishment for this offense was a forfeiture of $61.00 per month for two months and correctional custody for 30 days.  

5.  On 25 February 1970, a Summary Court-Martial (SCM) found the applicant guilty of two specifications of violating Article 134 of the UCMJ for breaching the restraint imposed against him by twice departing the Fort Knox Correctional Custody Facility without authority.  He was also found guilty of violating Article 86 of the UCMJ for going from his appointed place of duty without authority.  The resultant sentence was confinement at hard labor for thirty days and a forfeiture of $82.00, which was mitigated to forfeiture of $82.00, hard labor without confinement for 25 days, and restriction for 25 days.

6.  On 8 December 1970, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for two specifications of violation of Article 86 of the UCMJ by being AWOL from on or about 3 March through on or about 10 October 1970, and from on or about 9 January through on or about 26 January 1971.

7.  On 5 March 1971, the applicant consulted 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, he 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 his understanding that 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 that he understood he could face substantial prejudice in civilian life because of an undesirable discharge.

9.  On 26 March 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 April 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 9 months and 14 days of creditable active military service and he accrued 270 days of time lost due to AWOL and confinement.  

10.  On 22 January 1973, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade of his discharge. 

11.  On 27 March 1985, the ADRB considered a second application from the applicant for an upgrade of his discharge and after again carefully reviewing his record and the issues he presented, it again determined his discharge was proper and equitable and again voted to deny his request for an upgrade of his discharge.  

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, an UD was normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded based on his post service good conduct has been carefully considered.  However, while his post-service conduct is noteworthy, this factor alone is not sufficiently mitigating to support granting the requested relief. 
2.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his conviction by a SCM, his acceptance of NJP, and his accrual of 270 days of time lost due to AWOL and confinement.  Further, 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.  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 also 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 request.

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)                                         AR20080012943



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ABCMR Record of Proceedings (cont)                                         AR20080012943



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