IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080019260 


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, in effect, that he was young and immature at the time and that he elected a discharge instead of a court-martial.  He adds that he would like his discharge upgraded, even if he has to do some kind of service for the Army, because he is in need of medical assistance and that an upgrade of his discharge is the only way he would receive medical benefits.

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 16 June 1971, and a copy of the Army Discharge Review Board (ADRB) denial letter, dated 24 May 1984, 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 was born on 9 July 1950 and enlisted in the Regular Army at 19 years of age for a period of 3 years on 24 October 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Cook).  The highest rank/grade the applicant attained during his military service was private (PV2)/E-2.

3.  On 21 May 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 12 April 1970 through on or about 13 May 1970.  His punishment consisted of a forfeiture of $60.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty.

4.  On 29 December 1970, the applicant pled guilty at a special court-martial to four specifications of being AWOL during the periods on or about 6 June 1970 through on or about 9 June 1970, on or about 12 June 1970 through on or about 30 June 1970, on or about 1 September 1970 through on or about 5 October 1970, and on or about 15 November 1970 through on or about 23 November 1970.  The court sentenced him to confinement at hard labor for 120 days and forfeiture of $45.00 pay per month for 4 months.  The sentence was adjudged on 29 December 1970.

5.  On 15 January 1972, the approving authority approved the sentence but suspended the portion of the punishment which provided for confinement at hard labor in excess of 30 days and forfeiture in excess of $25.00 pay per month for 4 months until 28 June 1971.

6.  On 2 February 1971, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 2 March 1971.  He remained in this status until he surrendered to military authorities on 21 May 1971.

7.  On 26 May 1971, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 2 February 1971 until on or about 21 May 1971.

8.  On 1 June 1971, 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, 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).

9.  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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 4 June 1971, the applicant's immediate commander remarked that the applicant’s past history of AWOL, drug problem, and the predicament of his family indicated a definite pattern of non-restorability.  He further recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 14 June 1971, 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 under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 16 June 1971, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 1 year and 26 days of creditable active military service and had 207 days of lost time.

12.  On 24 May 1984, the ADRB denied the applicant’s petition 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, a discharge under other than honorable conditions is 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 discharge should be upgraded.

2.  The evidence of record shows that the applicant was 19 years of age at the time he enlisted and over 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age or less who successfully completed military service.  Furthermore, there is no evidence in the applicant's records and the applicant did not provide substantiating evidence that shows his long and repeated patterns of misconduct and indiscipline were the result of his age.

3.  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 Army Regulation 635-200 are voluntary requests for discharge in lieu of trial 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.

4.  There is no evidence in the available records, nor did the applicant provide documentation, that would warrant an upgrade of his discharge.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 did not submit evidence that would satisfy that requirement.

5.  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)                                         AR20080019260



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ABCMR Record of Proceedings (cont)                                         AR20080019260



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