IN THE CASE OF:	  

		BOARD DATE:	        21 JANUARY 2009

		DOCKET NUMBER:  AR20080015523 


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, in two applications, essentially requests that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that when he enlisted in the Selective Service, he was told that he would be in computer programming, but that it was not assigned to him.  He also states that he then received no pay for 8 months when he went to Germany because they lost his records.  He further states that he was told that his discharge would be changed to honorable after 6 months.

3.  The applicant provides a self-authored statement, dated 2 September 2008; his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) that were issued on 6 August 1969, 4 November 1970, and 20 May 1971; and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 2 September 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's military records show that he was inducted into the Army of the United States on 13 December 1967 after receiving a moral waiver for two counts of petty theft, one count of malicious mischief, and one count of reckless driving causing injury.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).  He departed for a tour in Germany on 17 June 1968.  On 17 February 1969, he was awarded primary MOS 11C (Infantry Indirect Fire Crewman).  On 7 August 1969, he enlisted in the Regular Army for an MOS-producing school.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) dated 7 August 1969, essentially shows that the applicant acknowledged that he understood that a firm school allocation must be confirmed at a later date, and that he may have to choose an alternate course subject to change or availability in his qualifying grade or MOS prior to confirmation of the course.  Orders, dated 7 August 1969, also show, in pertinent part, that his reenlistment for an Army service school was subject to the availability of a school quota, and that he had to submit an application not earlier than 7 February 1970 and not later than 7 May 1970.

3.  On 8 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 0600 hours, 2 January 1970, and remaining so absent until on or about 1700 hours, 2 January 1970.  His punishment consisted of reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, forfeiture of $30.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty.

4.  On 6 July 1970, the applicant accepted NJP under Article 15 of the UCMJ for breaking restriction.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

5.  On 23 July 1970, the applicant accepted NJP under Article 15 of the UCMJ for stealing a bicycle valued at about $45.00 which was the property of a German citizen.  His punishment consisted of a suspended reduction in rank and pay grade from private first class/E-3 to private/E-2, which was later vacated and duly executed, forfeiture of $50.00 pay per month for 2 months, and 45 days of extra duty.

6.  On 5 November 1970, the applicant reenlisted in the Regular Army with an enlistment option for an assignment to the Republic of Vietnam.  The applicant never served in Vietnam.

7.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not available for review, the applicant provided a properly constituted DD Form 214 that was issued to him on 20 May 1971.  This DD Form 214 shows that the applicant was discharged under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 
635-200 (Personnel Separations Enlisted Personnel).  This document also shows that he was issued a DD Form 258A (Undesirable Discharge Certificate).

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  The applicant provided a self-authored letter, dated 2 September 2008, in which he essentially stated that after he received his draft notice, he reported to Fort Lewis, Washington, for basic training, then went to Fort Huachuca, Arizona, for his advanced individual training (AIT) in MOS 94B.  He also stated that he had finished third in his AIT and was given a choice to either stay behind and train AIT, cook for a detachment at Fort Huachuca, or go to Wurzburg, Germany, and that he chose to go to Germany.  He further stated that when he arrived in Germany, he was assigned to the mess hall, but not to cook, and that he was sent to change tires on trucks for the next 6 months.  He continued by essentially stating that he was not happy being unable to cook, so he was transferred to his battalion to drive an officer.  Additionally, he stated that he reenlisted for computer programming before his first tour was up and went home on leave, but upon his return to Germany, he went back to driving and never got his computer programming assignment.  Additionally, he stated that his pay stopped about 2 and one-half years into his service and that he was told that they could not find any records, and that he did not receive military pay for 8 months.  He also stated, in effect, that since he had no money for laundry or anything else, he was unable to report in proper uniform and therefore was not able to perform his duties satisfactorily.  He also contends that he received a discharge under other than honorable conditions for reasons that were not his fault, and that he was told that his discharge would be changed after a reasonable length of time.  Further, he essentially stated that he has come to realize that a discharge under other than honorable conditions is not worthy of the time he spent in the military.

10.  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 [bad conduct or dishonorable] 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 [the current equivalent of the applicant's undesirable discharge] is normally considered appropriate.

11.  Army Regulation 635-200 paragraph 3-7, 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.

12.  Army Regulation 635-200, paragraph 3-7, also 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.

13.  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 an honorable discharge.

2.  The applicant's contention that he was told that his undesirable discharge would be changed to honorable after 6 months or after a reasonable amount of time was considered, but not found to have any merit.  There has never been a provision of regulation which provided for an automatic upgrade of a discharge after a specific period of time.

3.  The applicant's contention that he reenlisted for computer programming was noted.  Although the applicant enlisted into the Regular Army on 7 August 1969 for an MOS-producing school, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that he submitted an application for his Army service school not earlier than 7 February 1970 and not later than 7 May 1970 as instructed in his 7 August 1969 reenlistment orders.  Additionally, the applicant's reenlistment for an Army Service School was subject to the availability of a school quota, and the applicant acknowledged in his 7 August 1969 enlistment contract that he understood that a firm school allocation had to be confirmed at a later date, and that he may have to choose an alternate course subject to change or availability in his qualifying grade or MOS prior to confirmation of the course.

4.  The applicant's contention that he was not paid for 8 months was also considered.  However, there is no evidence in his military records, and the applicant failed to provide any evidence that he was not paid for 8 months.

5.  Although the facts and circumstances pertaining to the applicant’s discharge were not available for review, it is clear that the applicant was charged with the commission of an offense or offenses punishable under the UCMJ with a punitive discharge.  It also appears 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.

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.  Based on the applicant's record of indiscipline, which included absenting himself without authority from his unit, breaking restriction, stealing a bicycle from a German citizen, and committing an offense or offenses punishable under the UCMJ with a punitive discharge, 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)                                         AR20080015523



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ABCMR Record of Proceedings (cont)                                         AR20080015523



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