IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20080017097 


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 an upgrade of his discharge.

2.  The applicant states that some people had their discharge upgraded despite having a more serious offense than his.  

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show that he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 26 November 1969.  He subsequently entered active duty for training (ADT) on 9 January 1970, and completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 54A (Chemical Operations Specialist).  He was honorably released from ADT to the control of his USAR unit on 12 May 1970.  

3.  On 1 April 1970, the applicant accepted nonjudicial punishment for failing to obey a lawful regulation on or about 28 March 1970, and for absenting himself from his appointed place of duty on or about 30 March 1970.  His punishment consisted of an oral reprimand, reduction to private (PV1)/E-1, 14 days of restriction, and 14 days of extra duty. 

4.  On 7 June 1971, the applicant was notified by a certified letter that he was ordered to annual training (AT); however, the certified letter was returned marked "unclaimed."  After AT, follow–up attempts were made to contact the applicant by mail and/or telephone regarding his military obligations.

5.  On 6 July 1971 and as a result of the applicant's failure to fulfill the satisfactory participation requirements, the applicant's immediate commander requested the involuntary recall of the applicant to active duty.

6.  On 10 November 1971, the applicant was ordered to active duty for 24 months, less any active duty time he had already served, for unsatisfactory participation, effective 10 January 1972. 

7.  On 10 January 1972, the applicant failed to report.  He was therefore reported by his unit in an absent without leave (AWOL) status, effective that date, and was subsequently dropped from the Army rolls on 8 February 1972.  He was later apprehended by Federal authorities in New York City and was returned to military control on 25 July 1972.

8.  On 27 July 1972, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 10 January 1972 through on or about 25 July 1972. 

9.  On 3 August 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).
10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

11.  On 29 August 1972, the applicant’s immediate and intermediate commanders recommended approval of the request for discharge with an Undesirable Discharge Certificate. 

12.  On 31 August 1972, the applicant’s senior commander recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 18 September 1972, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 28 September 1972.  The DD Form 214 he was issued show he was discharged for the good of the service with an Under Other Than Honorable Conditions character of service.  This form further confirms the applicant had completed a total of 28 days of creditable active military service and had         232 days of lost time. 

14.  On 28 April 1982, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.   

15.  AR 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  AR 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.

17.  AR 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.  However, there is no evidence in the available records and the applicant did not provide any substantiating evidence that shows some Soldiers had their discharge upgraded despite having a more serious offense than his.  Additionally, every case must be considered on its own merits. 

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his 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, the applicant is not entitled to either a general 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.



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      _______ _   _______   ___
               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)                                         AR20080017097





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ABCMR Record of Proceedings (cont)                                         AR20080017097



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