IN THE CASE OF:	  

		BOARD DATE: 	        16 June 2009

		DOCKET NUMBER:  AR20090000774 


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 undesirable discharge.

2.  The applicant states that he is getting older and in need of Department of Veterans Affairs (VA) benefits. 

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 13 September 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  His records also show he executed a 7-month extension in the Regular Army on 30 September 1983.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 

3.  The applicant’s record reveals an extensive history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 13 November 1973, for failing to go at the time prescribed to his appointed place of duty on or about 7 November 1973.  His punishment consisted of a forfeiture of $50.00 pay and 7 days of extra duty; 

	b.  on 6 December 1973, for assaulting another Soldier (twice) by throwing him on the floor and striking him with his feet and fists; and by striking him on the chin with his fist, both on or about 2 December 1973.  His punishment consisted of reduction to private (PV2)/E-2, a forfeiture of $100.00 pay per month for 
2 months (one month suspended for 90 days), and 45 days of extra duty 
(30 days suspended for 90 days);

	c.  on 10 January 1974, for absenting himself from his appointed place of duty on or about 29 December 1973.  His punishment consisted of a forfeiture of $50.00 pay per month for 2 months (1 month suspended for 90 days) and
20 days of confinement in the Correctional Custody Facility (CCF) (10 days suspended for 90 days); and

	d.  on 19 April 1974, for breaching the peace by wrongfully participating in a fist fight in the barracks on or about 27 March 1972.  His punishment consisted of a reduction to private (PVT)/E-1, 30 days of confinement in the CCF, and a forfeiture of $150.00 pay per month for 2 months (suspended for 120 days).  On 19 April 1974, he appealed his punishment to the next higher commander and was granted partial relief in the form of a suspension of 15 days of CCF for a period of 120 days.  However, on 26 June 1974, the suspension was vacated and the unexecuted portion was ordered executed. 

4.  On 30 May 1974, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 2 July 1974.  He surrendered to civil authorities in Delaware and was returned to military control at Fort Meade, MD, on 22 September 1975.

5.  On 29 September 1975, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 30 May 1974 to on or about 22 September 1975.

6.  On 29 September 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, 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).

7.  In his request for discharge, the applicant acknowledged that he understood 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  On 12 November 1975, the applicant’s immediate commander recommended approval of the applicant’s request for discharge with the issuance of an Undesirable Discharge Certificate.

9.  On 19 November 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 that he be reduced to the lowest enlisted grade.  On 9 December 1975, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 1 year, 10 months, and 10 days of creditable active service and he had 493 days of lost time prior to the expiration of his term of service (ETS) and 9 days of lost time subsequent to his normal ETS date. 

10.  There is no evidence in the applicant’s records to indicate that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitation. 

11.  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.

12.  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.

13.  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.

2.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed 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.


3.  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 this requirement.  

4.  Based on the applicant’s record of indiscipline, the applicant's service clearly did 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.




      __________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)                                         AR20090000774



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000774



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1