IN THE CASE OF:	  

		BOARD DATE:	        3 March 2009

		DOCKET NUMBER:  AR20080019098 


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, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he served during the Vietnam era for 2 1/2 years and volunteered for combat arms although he did not meet the Army's perquisites.  Even though he graduated in the upper class during basic training and received on the job training (OJT) in artillery and completed Redeye missile classes, he believes he should have been placed in another specialty. 

3.  The applicant did not provide any additional documentary evidence 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 records show he enlisted in the Regular Army for a period of 3 years on 17 March 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records reveal a history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 23 June 1972, for failing to go at the time prescribed to his appointed place of duty on or about 20 June 1972.  His punishment consisted of forfeiture of $63.00 pay for 1 month; 

	b.  on 19 October 1972 for being absent without leave (AWOL) during the period from on or about 10 October 1972 through on or about 17 October 1972.  His punishment consisted of a forfeiture of $70.00 pay for 1 month, 14 days of extra duty, and 14 days of restriction; and

	c.  on 29 August 1973, for being AWOL during the period from on or about
25 July 1973 through on or about 15 August 1973.  His punishment consisted of a forfeiture of $150.00 pay for 1 month (suspended for 90 days) and 30 days of extra duty.

4.  On 22 October 1974, the applicant departed his unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 22 November 1974.  He ultimately surrendered to military authorities at Presidio of San Francisco, CA, on 3 February 1975.  He was later placed in military confinement on 6 February 1975 and remained in this status until he was released from confinement on 28 February 1975.

5.  On 5 February 1975, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 25 October 1974 through on or about 3 February 1975.  

6.  On 5 February 1975, 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 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, on 12 February 1975, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel).

7.  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 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 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. 

8.  On 5 March 1975, the applicant’s immediate commander recommended approval of the discharge with an Undesirable Discharge Certificate.  He further remarked that the applicant’s pattern of behavior indicated that retention was neither practical nor desired.  

9.  On 6 March 1975, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.

10.  On 31 March 1975, the applicant’s senior commander also recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate. 

11.  On 2 April 1975, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 9 April 1975, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged for the good of the service with an Undesirable Discharge Certificate with service characterized as under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 7 months, and 23 days of creditable active military service and had 154 days of lost time. 

12.  On 27 November 1979 and 12 December 1981, the Army Discharge Review Board (ADRB) denied the applicant’s petitions for an upgrade of his discharge.

13.  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, 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, at the time an undesirable discharge was normally considered appropriate.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 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.


															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)                                         AR20080019098



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ABCMR Record of Proceedings (cont)                                         AR20080019098



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