IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080018246


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 (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his UD should be upgraded to an HD because the Army promised to train him in the military occupational specialty (MOS) of his choice if he volunteered for the draft.  He claims he volunteered for infantry training and was instead trained as a cook and it is his belief this was a breach of contract on the part of the Army. 

3.  The applicant provides a self-authored statement in support of his 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 record contains a Statement for Enlistment (DA Form 3286-3) prepared on the applicant during his entrance processing that confirms he enlisted under the “Regular Army Enlistment Option,” which provided that his initial assignment to training or duty would be determined in accordance with the needs of the Army with no guarantee or implied promise that he would be assigned to a specific training, duty, or location.  The applicant acknowledged that no other spoken words or written promises were made to him in conjunction with his enlistment and he authenticated this document with his signature on 
20 March 1969.  

3.  The applicant’s military record shows he enlisted into the Regular Army and entered active duty on 20 March 1969, and was trained in and awarded military occupational specialty (MOS) 94B (Cook). 

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he was promoted to private first class/E-3 (PFC) on 11 December 1970, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced on three separate occasions and that he was finally reduced to private/E-1 (PV1) on 1 July 1971. 

5.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant’s DA Form 20 shows he accrued 204 days of time lost due to two separate periods of being absent without leave (AWOL) and one period of being dropped from the rolls (DFR) of the Army.  

6.  A Record of Court Martial Conviction Insert Sheet (DA Form 20B) to the applicant's DA Form 20 shows that on 21 August 1969, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 15 August 1969 to 26 January 1970.  The resultant sentence was forfeiture of $82.00 per month for six months, reduction to PV1, and three months restriction.  

7.  The applicant’s record also reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ on 28 January 1971, for being AWOL from 19 through 27 January 1971.

8.  On 15 June 1971, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 2 May until on or about 3 June 1971.


9.  On 17 June 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

10.  In his request for discharge, the applicant acknowledged he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated he understood he could face substantial prejudice in civilian life because of an UD and provided a statement in his own behalf.  In his statement, the applicant stated that he first departed AWOL to provide financial assistance to his parents and secondly, to mediate problems between his parents and the girl that he planned to marry.  He finally stated that he thought the needs of his parents were more important than the needs of the Army.  

11.  On 30 June 1971, the separation authority approved the applicant’s request for discharge and directed that he receive an UD under the provisions of chapter 10, Army Regulation 635-200.  On 2 July 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 1 year, 8 months, and 19 days of creditable active military service and that he accrued 204 days of lost time due to AWOL.  

12.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a, provides that an honorable discharge (HD) 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.  

14.  Paragraph 3-7b separation regulation provides that a general, under honorable conditions discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

15.  Chapter 10 of the same 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.  Although the separation authority may authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the members record, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the issue of an UD. was authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded to an HD because the Army breached its contractual agreement to train him as an infantryman upon his entry on active duty has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms that the applicant’s initial training or duty assignment would be determined in accordance with the needs of the Army and that he was not guaranteed or promised an assignment to any specific training, duty, or location, as evidenced in the Statement of Enlistment prepared on the applicant during his enlistment processing, which he authenticated with his signature, thereby verifying the information contained therein.

3.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The applicant, after consulting with counsel and being advised of his rights and the effects of an UD, voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.

4.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UD the applicant received was normal and appropriate under the regulatory guidance, and given his extensive disciplinary history, his 
record of service clearly did not support the issue of a GD or an HD by the separation authority at the time of his discharge, and it does not support an upgrade at this late date.  

5.  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.

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)                                         AR20080018246



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ABCMR Record of Proceedings (cont)                                         AR20080018246



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