IN THE CASE OF:	  

		BOARD DATE:	        13 JANUARY 2009

		DOCKET NUMBER:  AR20080016875 


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 essentially believes that he should have been honorably discharged.  He also states, in effect, that his discharge should be upgraded because it has been well over 20 years since he was discharged.

3.  The applicant provides no additional evidence 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 enlisted in the Army National Guard on 22 September 1971.  He entered active duty for training (ADT) on 
6 January 1972, completed initial entry training, and was awarded military occupational specialty 94B (Cook).  He was released from ADT on 13 May 1972 and reverted back to his National Guard unit.  On 18 August 1975, he was discharged under honorable conditions due to being an unsatisfactory participant, and was involuntarily ordered to active duty as a member of the United States Army Reserve on 19 August 1975 for a period of 18 months and 22 days.  He departed for a tour in Germany on 17 September 1975.

3.  On 23 December 1975, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on two occasions and being disrespectful in language towards his superior noncommissioned officer.  His punishment consisted of a verbal reprimand.

4.  On 10 March 1976, 22 April 1976, and 23 April 1976, the applicant was informed that charges were preferred against him for the following offenses which were punishable under the UCMJ with a punitive discharge:

	a.  absenting himself without authority from his unit on or about 4 February 1976, and remaining so absent until on or about 6 March 1976;

	b.  conspiring on or about 16 April 1976 with two other Soldiers to sell heroin to a fourth individual;

	c.  wrongfully having in his possession three grams, more or less, of heroin on or about 16 April 1976;

	d.  wrongfully selling heroin on or about 16 April 1976; and

	e.  wrongfully transferring heroin on or about 16 April 1976.

5.  On 7 May 1976, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  He acknowledged charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will, and he had not been subjected to any coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was guilty of the charges against him or of lesser included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

6.  The applicant also indicated that prior to completing his request for discharge, he had been afforded the opportunity to consult with appointed counsel, who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He was also informed of the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  He further acknowledged that although his appointed counsel furnished him legal advice, this was his own decision.

7.  In his request for discharge, 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.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  It does not appear that the applicant elected to submit a statement in his own behalf.

8.  On 21 June 1976, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.  He also directed the applicant’s reduction in rank and pay grade to private/E-1.  On 28 July 1976, the applicant was discharged accordingly.  

9.  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.

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

11.  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.  

12.  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.

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 his discharge should be upgraded because it has been well over 20 years since he was discharged was considered, but not found to have any merit.  There has never been a provision of regulation which provided that a discharge would be upgraded after a certain amount of time, and the ABCMR does not upgrade discharges based solely on the passage of time.

3.  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. 

4.  It is clear the applicant was charged with the commission of offenses 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.  The applicant 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.  Therefore, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  Based on the applicant's record of indiscipline, 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)                                         AR20080014911



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ABCMR Record of Proceedings (cont)                                         AR20080016875



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