IN THE CASE OF:	  

		BOARD DATE:	  12 March 2009

		DOCKET NUMBER:  AR20080017491 


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.

2.  The applicant states, in effect, that he went through a divorce and tried to get a compassionate reassignment or an extension of his service time.  The Army had a lack of compassion.

3.  The applicant provided no additional documentary evidence is support of his request for an upgrade of his discharge.

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 he enlisted in the Regular Army on 12 October 1972.  He successfully completed basic combat training at Fort Ord, California, and his advanced individual training at Fort Sam Houston, Texas.  Upon completion of his advanced training, he was awarded the military occupational specialty (MOS) 91A (Medical Corpsman).  At the time of his discharge, the applicant held the MOS 91B (Medical Specialist).

3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was advanced to the rank and pay grade of private, E-2, on 12 February 1973.  This would be the highest rank and pay grade he would serve in while on active duty.  The record contains no documented acts of valor, achievement, or service warranting special recognition. 

4.  On 18 September 1973, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice having willfully disobeyed the lawful orders of his superior commissioned officers on 4 September 1973.  The imposed punishment was a reduction to the pay grade E-1 and 7 days of confinement in the Correctional Confinement Facility.  The applicant appealed the punishment imposed and on 2 October 1973 his appeal was denied by the appropriate authority.  The applicant acknowledged the denial of the appeal on the same date.

5.  On 16 October 1973, the applicant received NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 13 October 1973.  The imposed punishment was 7 days of extra duty.  The applicant did not appeal the punishment.

6.  A mental status evaluation was conducted on 1 February 1974.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was level, his thinking process was clear, and his thought content was normal.  The applicant's memory was good.  The evaluating psychiatrist, a Medical Corps captain, found him to be mentally responsible, considered to have the mental capacity to understand and participate in board proceedings, and to meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The evaluating psychiatrist found no evidence of significant mental illness.

7.  On 5 March 1974, the applicant received NJP under Article 15 of the UCMJ for wrongfully having in his possession one ounce, more or less, of marijuana on 21 February 1974.  The imposed punishment was a forfeiture of $75.00 pay per month for 2 months (the second month suspended for 60 days) and 14 days of extra duty.  The applicant did not appeal the punishment.

8.  The applicant's DA Form 2475 (Personnel Data) shows the following derogatory entries:

2 July 1973//Depart Absent Without Leave 0730 hours 19 June 1973//
12 July 1973//Return Present from Absent Without Leave 2030 hours 1 July 1973//
31 March 1974//Depart Leave to Ordinary Leave 5 days 29 March 1974//
4 April 1974//Change to Absent Without Leave 0001 hours 3 April 1974//
6 May 1974//Dropped from the Rolls of the Organization Absent Without Leave since 3 April 1974//
20 June 1974//Returned Joined from Dropped From the Rolls of the Organization//

9.  The applicant's request for discharge in lieu of court-martial is not on file in his service personnel record; however, on 1 October 1974, he was reassigned to the U.S. Army Transfer Point, by Headquarters, 25th Infantry Division, Special Orders Number 205, for the purpose of early separation for the good of the service with an undesirable discharge.  

10.  The applicant was discharged in the rank and pay grade of private, E-1, under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, for conduct triable by court-martial on 11 October 
1974.  The applicant's service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  On the date of his discharge, the applicant had completed 1 year, 9 months, and 11 days of creditable active military service with 79 days of time lost due to his absences without leave.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show, 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.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial at his request.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.

3.  The applicant's request for discharge in lieu of court-martial is not on file in his service personnel record; however, on 1 October 1974, he was reassigned to the U.S. Army Transfer Point for the purpose of being discharged for the good of the service with an undesirable discharge.  Since the applicant's request for discharge and all other related documents are not available for the Board's review, it must be presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicable regulation shows that the characterization of service for this type of discharge is normally under other than honorable conditions and it is believed the applicant was aware of that prior to requesting discharge.

5.  It appears the applicant's entire record of service for the period under review was fully considered by his command.  Based on the applicant's poor conduct and record of performance, it appears the reason for discharge and the characterization of service were both proper and equitable.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his Undesirable Discharge to either a General Under Honorable Conditions Discharge or to a fully 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.



      __________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)                                         AR20080017491



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ABCMR Record of Proceedings (cont)                                         AR20080017491



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