IN THE CASE OF:	

		BOARD DATE:	  13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014421 


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 to an honorable discharge.

2.  The applicant states, in effect, that he was told he would get credit for his honorable discharge and that is why he accepted the bad discharge.

3.  In support of his request, the applicant submitted a copy of his two previously issued DD Forms 214 (an Armed Forces of the United States Report of Transfer or Discharge and a Report of Separation from Active Duty); and a copy of a Department of Veterans Affairs (VA) Form 21-4138, Statement in Support of Claim, dated 19 September 2008 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 evidence shows the applicant enlisted in the Regular Army for 3 years on 2 October 1970.  He successfully completed basic combat and advanced individual training and on completion of his advanced training, he was awarded military occupational specialty 94B (Cook).

3.  The applicant was promoted to the rank and pay grade, specialist four (SP4)/ E-4 on 20 January 1972.  This would be the highest rank and pay grade he would attain while he served on active duty.  The record contains no documentary evidence of acts of valor or achievement which warrant special recognition.

4.  The applicant was honorably discharged on 2 November 1972 in the rank and pay grade of SP4/E-4 under the provisions of Army Regulation 635-200 for the purposes of immediate reenlistment.  On the date of his discharge the applicant had completed 2 years, 1 month, and 1 day net active service with no time lost.

5.  The applicant reenlisted in the Regular Army for 6 years on 3 November 1972.

6.  On 29 November 1972, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit at 0330 hours on 27 November 1972 and remaining so absent until 0800 hours on 27 November 1972.  The imposed punishment was a reduction to pay grade E-3 (suspended for 60 days), a forfeiture of $82.00 pay for month, and restriction for 14 days.  The applicant did not appeal the punishment. 

7.  On 11 July 1973, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to report to his appointed place of duty on 4 July 1973.  The imposed punishment was a reduction to pay grade E-3, a forfeiture of $45.00 pay for month, and extra duty for 14 days.  The applicant did not appeal the punishment. 

8.  A DA Form 3835, Notice of Unauthorized Absence from the United States Army, shows that on 8 October 1974, the applicant was reported as absent without leave by his unit, Company D, 54th Engineer Battalion, which was located in Germany.  The applicant was dropped from the rolls of the Army on
6 November 1974.

9.  A DA Form 3836, Notice of Return of US Army Member from Unauthorized Absence shows that the applicant was apprehended by civil authorities and was returned to military control at Dade City, Florida on 25 May 1976.

10.  The applicant’s discharge request is not available for the Board's review; however, the evidence, a completed DD Form 214, shows that on 13 July 1976 he was given an undesirable discharge with service characterized as under other than honorable conditions, in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service-in lieu of court-martial.  On the date of his discharge the applicant had completed 2 years and 24 days service of his six-year reenlistment contract, with 587 days time lost.  The evidence shows the applicant had completed a combined total of 4 years, 1 month, and 25 days total active service on his two enlistment contracts.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  An undesirable discharge with service characterized as under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant 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.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

2.  The characterization of service for this type of discharge was normally under other than honorable conditions.  Procedurally, the applicant would have been made fully aware of this prior to his being allowed to request discharge for the good of the service, in lieu of trial by court-martial.  It is believed that the reason for discharge and the characterization of service are both proper and equitable.

3.  The applicant's entire record of service and the quality of his service were reviewed.  His record contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his undesirable discharge.  The highest rank and pay grade he achieved while he was in service was SP4/E-4.  The applicant's record shows he received non-judicial punishment twice and was given a suspended reduction and a reduction in pay grade as part of his punishments.  Neither the applicant's record nor service was considered to be sufficiently meritorious to warrant an upgrade of his undesirable discharge to general, under honorable conditions or even to a fully honorable discharge.

4.  In order to justify correction of a military record, the applicant must show, 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his undesirable discharge to either a general, under honorable conditions or an honorable discharge.




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)                                         AR20080014421



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ABCMR Record of Proceedings (cont)                                         AR20080014421



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