IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080014772


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 or general discharge.

2.  The applicant essentially states that he failed to request his discharge be upgraded by the Army Discharge Review Board (ADRB) within 15 years of his discharge.  He also states that he had honorable periods of service at Fort Polk, Louisiana and at Fort Jackson, South Carolina.  He further states that he should have never allowed his chain of command to convince him to accept an undesirable discharge because he had honorable service.  Additionally, he states that veterans started informing him to try and get his discharge changed because he was under an unfair system of justice at the time.

3.  The applicant provides eight third-party letters of support, three of which were undated and the others dated 29 July 2008, 21 July 2008, 31 July 2008, 
8 August 2008; and another dated 29 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 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 records show that he enlisted in the Regular Army on 5 April 1963.  He completed basic and advanced individual training and was awarded military occupational specialty 56A (Supply Handler).

3.  Between 3 September 1963 and 21 June 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on seven occasions.  His offenses included five counts of absenting himself without authority from his unit, one count of failure to repair, one count of failing to go at the time prescribed to his appointed place of duty, and one count of being incapacitated for the proper performance of duty as a result of previous indulgence in intoxicating liquor.  Collectively, his punishment consisted of two reductions in rank, forfeiture of $56.00, restriction for 35 days, extra duty for 37 days, and two oral reprimands.

4.  The applicant's military records also show that he was convicted by a summary court-martial on 29 September 1966 for absenting himself without authority from his unit on or about 1 September 1966, and remaining so absent until on or about 2 September 1966, breaking restriction, being incapacitated for the proper performance of his duties as a result of previous overindulgence in intoxicating liquor, and being drunk and disorderly in a public place.  He was sentenced to confinement at hard labor for 30 days, forfeiture of $83.00 pay per month for 1 month, and reduction in rank and pay grade from private/E-2 to private/E-1.  However, only so much of the applicant's sentence as provided for confinement at hard labor for 30 days, forfeiture of $59.00 pay per month for 
1 month, and reduction in rank and pay grade from private/E-2 to private/E-1 was approved and ordered to be duly executed.

5.  Additionally, the applicant's military records show that he was convicted by a second summary court-martial on 23 May 1967 for absenting himself without authority from his unit on or about 29 April 1967 and remaining so absent until on or about 6 May 1967.  He was sentenced to a reduction in rank and pay grade from private first class/E-3 to private/E-2, and restriction for 60 days.  On 26 May 1967, the applicant's sentence was approved and ordered to be duly executed.

6.  On or about 24 June 1967, the applicant went absent without leave, and he was subsequently dropped from the rolls of the Army and classified a deserter.  He remained in this status until he returned to military control on 8 December 1967.

7.  Although the complete facts and circumstances surrounding his discharge proceedings, i.e., his charge sheet, was not in his military records, on 10 January 1968, the applicant voluntarily requested discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 
635-200 (Enlisted Personnel) for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge, and that he had been advised of the implications that were attached to it.

8.  The applicant also acknowledged that he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now named the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit statements in his own behalf and declined the opportunity to consult with counsel.

9.  On 1 March 1968, the proper separation authority approved the applicant's request for discharge under the provisions of Chapter 10, Army Regulation 
635-200, and directed that he be issued an Undesirable Discharge Certificate.  He also directed that the applicant be reduced to the rank and pay grade of private/E-1.  On 15 March 1968, he was discharged accordingly.

10.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

11.  The applicant provided eight third-party letters, which essentially portray the applicant as a caring, well-respected, church-going member of the community who is a role model who is always willing to help others.  

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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.
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 (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.

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 the Soldier’s separation specifically allows such characterization.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge.

2.  The applicant's contention that he had honorable service at Fort Polk, Louisiana and Fort Jackson, South Carolina was noted.  However, this only accounted for his time in initial entry training and while awaiting his discharge after returning from his status as a deserter, and clearly does not begin to approach the threshold of outweighing his extensive history of misconduct.

3.  The applicant's contention that he should have never allowed his chain of command to convince him to accept an undesirable discharge was considered, but not found to have any merit.  The applicant clearly stated in his request for discharge, which he voluntarily submitted, that he had not been subjected to coercion.

4.  The applicant's contention that his service was under an unfair system of justice at the time was also considered, but not found to have any merit.  The applicant provided no evidence to support his contention that the system of justice in place at the time was unfair.  Additionally, the applicant most certainly would have been received the same type of punishment and discharge under today's standards, and would also have had charges preferred against him for going being absent without leave and later being dropped from the rolls of the Army.

5.  The eight third-party letters that were provided by the applicant were also carefully considered.  The applicant's post service conduct was noted; however, good post-service conduct alone is not a basis for upgrading a discharge.  
  
6.  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.

7.  While the charge sheet surrounding his request for discharge was not available, it appears that the applicant was charged with the commission of offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

8.  Based on the applicant's record of indiscipline, which included him accepting NJP under Article 15 of the UCMJ on seven occasions, conviction by two summary courts-martial, and his absence without leave in which he was later dropped from the rolls of the Army and classified a deserter, 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 an honorable or general 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.




      ___        __XXX_______       ___
                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)                                         AR20080009502



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ABCMR Record of Proceedings (cont)                                         AR20080014772



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