IN THE CASE OF:	  

	BOARD DATE:	  18 November 2008

	DOCKET NUMBER:  AR20080014490 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states that he was under the impression that his discharge would be upgraded after 6 months.

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214).

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.  On 21 June 1974, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 72E (Teletype Communications Specialist).

3.  On 21 January 1975, the applicant was assigned for duty as a teletype operator with the 3d Battalion, 61st Air Defense Artillery Regiment, in the Federal Republic of Germany.

4.  On 1 April 1975, the applicant was promoted to private first class, pay grade E-3.

5.  On 18 April 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for dereliction of duty by failing to secure the logbook for his government vehicle.  The punishment included a forfeiture of $40.00 pay per month for 1 month and 14 days of extra duty (suspended).

6.  On 2 April 1976, the applicant accepted NJP for willful failure to obey a lawful order from a noncommissioned officer.  The punishment included a forfeiture of $95.00 pay per month for 1 month and 14 days of extra duty.  The applicant appealed the punishment resulting in the extra duty being remitted in its entirety.

7.  On 23 June 1976, the applicant accepted NJP for failure to go to his place of duty.  The punishment included a reduction to pay grade E-2.  The applicant’s appeal of the punishment was denied.

8.  On 24 August 1976, the applicant was convicted by special court-martial of leaving his guard post without authority and for willfully disobeying a lawful order.  His sentence consisted of confinement at hard labor for 90 days, forfeiture of $240.00 pay per month for 3 months (suspended), and reduction to pay grade 
E-1.  He served 73 days in confinement.

9.  On 10 November 1976, the applicant was placed on orders for assignment to Fort Lewis, Washington.  He was subsequently assigned for duty as a communications center specialist with the 1st Signal Group.

10.  On 25 April 1977, the applicant accepted NJP for being disrespectful in language toward a noncommissioned officer, who was then in the execution of his office, and by willfully disobeying a lawful order.  The punishment included forfeiture of $50.00 pay per month for 1 month.  The applicant’s appeal of the punishment was denied. 

11.  On 3 May 1977, the applicant accepted NJP for failure to obey a lawful order from a commissioned officer and for disrespectful behavior toward the same officer.  The punishment included reduction to pay grade E-1, forfeiture of $87.00 pay per month for 1 month, and 14 days of restriction and extra duty.  The applicant’s appeal of the punishment was denied.

12.  On 12 and 19 May 1977, charges were preferred under the Uniform Code of Military Justice for violation of Article 86 for failing to go to his place of duty (four specifications) and for violation of Article 134 for wrongful possession of marijuana.

13.  On 14 June 1977, the applicant consulted with 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 under other than honorable conditions discharge, and of the procedures and rights that were 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. 

14.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

15.  On 20 June 1977, the separation authority approved the applicant’s request for discharge and directed that he be issued a Discharge Certificate Under Other Than Honorable Conditions.  On 27 June 1977, the applicant was discharged accordingly.  He had completed a total of 2 years, 8 months, and 29 days of creditable active military service and had accrued 98 days of time lost due to AWOL and confinement.

16.  On 2 March 1983, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

17.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

18.  The Manual for Courts-Martial, as in effect at the time, provided for a maximum punishment of a punitive discharge and confinement for 5 years for violation of Article 134 for possession of marijuana.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.

3.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080014490



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