IN THE CASE OF:	  

		BOARD DATE:	       24 March 2009

		DOCKET NUMBER:  AR20090000603 


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 a general discharge (GD) and that his period of service in Okinawa be included on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

2.  The applicant states that he was told his discharge would be automatically upgraded after 6 months.  If he had not been told his discharge would be automatically upgraded he would have fought the discharge.  Additionally, he states, in effect, that his period of overseas service in Okinawa should be verified and shown, at item 22c (Foreign Service), on his DD Form 214.

3.  The applicant provides no supporting documentation.

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 entered active duty in the Regular Army on 20 July 1971, completed training and was awarded military occupational specialty (MOS) 64C (Motor Transport Specialist).

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 17 October 1971 for being absent without leave (AWOL) from 27 September through 11 October 1971.

4.  An 11 January 1972, a special court-martial found the applicant guilty of being AWOL on two occasions from 26 October 1971 through 18 November 1971 and 22 through 28 November 1971.

5.  The applicant received NJP on two additional occasions as follows:

   a.  on 21 June 1972, for being absent from his place of duty on 12 and 17 June 1972; and 

	b.  on 8 August 1972, for being absent from his place of duty on 7 August 1972.

6.  The applicant was AWOL from 20 September through 30 October 1972 and from 6 through 17 December 1972.  The applicant’s second period of AWOL ended as a result of apprehension by civilian authorities.  Court-martial charges were preferred for these periods of AWOL on 19 December 1972.

7.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that if the request was accepted that he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.

8.  The applicant submitted a statement in concert with his separation request stating that if he was not afforded an administrative separation he would continue to go AWOL.

9.  While awaiting separation under the provisions of chapter 10, Army Regulation 635-200, the applicant requested that he be placed in an excess leave status.  The applicant went AWOL, on 26 December 1972, prior to this request being approved.

10.  The discharge authority approved the applicant’s request for separation under the provisions of chapter 10, Army Regulation 635-200 and directed that the applicant be issued a UD.

11.  A letter, dated 18 January 1973, notified the applicant that he had been discharged while in an AWOL status.

12.  On 18 January 1973, the applicant was separated with a UD.  The DD Form 214 he was issued shows he had completed 1 year, 1 month, and 21 days of creditable service with 128 days of lost time.  The applicant’s DD Form 214, item 22c contains the entry "See Item #30."  Item 30 (Remarks) states that his period of service in Okinawa could not be determined from the available records.

13.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Okinawa with the 44th Transportation Company from 31 March through 19 October 1972, when he was dropped from the rolls in a deserter status.  It also shows that, prior to being dropped from the rolls, he went AWOL on 20 September 1972.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitation.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  In pertinent part it provides the following:

	a.  Chapter 3, outlines the criteria for characterization of service.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5. It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC for discharges issued under the provisions of chapter 10 of this regulation; and 

	b.  Chapter 10 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he would have fought the discharge action if he had not been told his discharge would be automatically upgraded.  He also contends that his DD Form 214 should show his foreign service.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade a discharge or to accept a request for the upgrade of a discharge after a certain amount of time.  Each case is decided on its own merits when an applicant submits a DD Form 149 (Application for Correction of Military Record) requesting a change in discharge.  Changes may be warranted if the evidence supports that the characterization of service or the reason(s) for discharge, or both, were improper or inequitable.  The applicant has provided no evidence to support either.

3.  The applicant was aware of the proposed characterization of his discharge at the time he requested an administrative separation in lieu of court-martial.  The fact that he went AWOL while awaiting the processing of his separation action belies his contention that he would have fought the characterization of his discharge.  

4.  In view of the applicant's numerous acts of disciplinary infractions, it appears the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.
6.  The available documentation shows the applicant served in Okinawa from 31 March 1972 through the day before he went AWOL, 19 September 1972, a period of 5 months and 20 days.  Therefore, based on the best available documentation, the applicant's DD Form 214 should be corrected to show, in item 22c, this period of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X __  ___X ___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting the entry in item 22c of the applicant’s DD Form 214 and the related entry in item 30; and 

   b.  adding to item 22c of the applicant’s DD Form 214 “5 months and 
20 days.”

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge.  




      _______ _ 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)                                         AR20090000603



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ABCMR Record of Proceedings (cont)                                         AR20090000603


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