IN THE CASE OF:	  

		BOARD DATE:	      1 OCTOBER 2009

		DOCKET NUMBER:  AR20090000959 


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, upgrade of his undesirable discharge. 

2.  The applicant essentially states that during his enlistment process, he asked what options he had, and his recruiter told him that if he joined for 2 years he would be sent out of the United States the entire time, but that if he signed up for 3 years, he would not be sent out of the United States.  He also contends that he was told by his recruiter that he would be given an Army guarantee card as further proof that he would have stateside duty and remain in his military occupational specialty (MOS) of 76Y (Unit Supply Specialist).  However, he indicates that not long after he started learning his new job as a Supply Clerk, he was transferred to an infantry regiment and he was not given any reason for the transfer.  Further, he alleges that after he was told that he was going to Germany, he gave his captain his guarantee card, but that the captain told him a few days later that he lost his guarantee card and that he was going to Germany and he needed to make arrangements for his family.  He also states, in pertinent part, that his girlfriend became pregnant, so he did what he thought was right and married her on his first leave from basic training, with his first daughter being born at Fort Hood, TX and that his family was the reason he asked for and he was guaranteed stateside service while in the Army.  He further contends that he felt he had no choice at that point but go absent without leave (AWOL) for a few days to force the Army to reassign him, and he drove his family from Fort Hood to San Bernardino, CA for a couple of days and then he drove his family back to Fort Hood.  Upon return, his request for reassignment was denied, and again he felt no choice but to go AWOL a second time, and again he drove his family back 
to San Bernardino.  After turning himself in at Norton Air Force Base, CA after about 3 months, he states he was sent to Fort Ord, CA, where he was told that if he wanted to be discharged, he would receive an undesirable discharge and not a dishonorable discharge.  He also alleges that it was recently brought to his attention by a veterans service representative that his discharge was dishonorable, and that he has been devastated to learn after 34 years that he was dishonorably discharged.

3.  The applicant provides the first page of his DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 24 September 1974; his DD Form 214 (Report of Separation from Active Duty); a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), in which he accepted nonjudicial punishment (NJP) on 26 March 1976; two undated self-authored letters; a third-party letter, dated 26 November 2008; a letter from his spouse, dated 14 November 2008; and another third-party letter, dated
19 November 2008, in support of this 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 military records show that he enlisted in the Regular Army (RA) on 24 September 1974 for a period of 3 years, for on-the-job training in MOS 76Y, and the U.S. Army Special Unit Enlistment Option for the 2nd Armored Division.   Section III of his DA Form 3286-47-R (Statements for Enlistment - Part IV - United States Army Special Unit Enlistment Option) essentially shows that he was guaranteed assignment to the unit for which he enlisted for a minimum of 16 months after completion of training.  There is no indication in his enlistment contract that he was guaranteed to serve stateside or in MOS 76Y for his entire enlistment.  He completed basic training at Fort Ord, CA.  He was then reassigned to Fort Hood in December 1974, where he was assigned to the 502nd Adjutant General Replacement Detachment with duty at 

Service Battery, 1st Battalion, 92nd Field Artillery, 2nd Armored Division.  On
9 April 1975, the applicant was reassigned to Service Battery, 1st Battalion, 92nd Field Artillery, 2nd Armored Division and served in MOS 76Y.  On 27 June 1975, he was reassigned to Company A, 2nd Battalion, 58th Infantry Regiment, 2nd Armored Division for duty in MOS 11B (Infantryman).

3.  On 11 November 1975, the applicant went AWOL, and he remained in this status until he returned to military control on 14 November 1975.  

4.  On 26 March 1976, the applicant accepted NJP under Article 15, UCMJ for without authority going from his appointed place of duty on or about 16 March 1976.  His punishment consisted of a reduction in rank/grade from specialist four (SP4)/E-4 to private first class (PFC)/E-3, forfeiture of $75.00, and restriction for 1 week.

5.  On 19 April 1976, the applicant went AWOL.  On 18 May 1976, he was dropped from the rolls of the Army and classified a deserter.  He remained in this status until he surrendered to military authorities at Norton Air Force Base, California on 12 July 1976.  He was subsequently reassigned to Fort Ord.  

6.  On 16 July 1976, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about 
19 April 1976 and remaining so absent until on or about 12 July 1976, an offense punishable under the UCMJ with a punitive discharge.  

7.  Additionally, on 16 July 1976, a Judge Advocate General's Corps lawyer informed the applicant that he was pending trial by court-martial and, that if convicted, the Manual for Courts-Martial authorized as a part of the punishment for his offense the issuance of a bad conduct or dishonorable discharge.  This lawyer was informed that the applicant desired to submit a request for discharge for the good of the service under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  This lawyer also essentially indicated that before he permitted the applicant to make his request, he wanted to explain to the applicant the provisions of chapter 10, advise him as to the probable nature and effects of a discharge under this regulation, and advise him of certain rights that he had and could exercise.  

8.  This lawyer wanted to make it clear to the applicant that the Army was not trying to separate him at that point, and that if he did request discharge for the good of the service, it must be his voluntary choice, and that no person could make, force, or coerce him to ask for this discharge.  This lawyer also warned the 
applicant against widespread rumors that an undesirable discharge could easily be changed to an honorable discharge after his release, or that after a certain time it would automatically become honorable, and that these rumors were totally false.  This lawyer also advised the applicant about the Army Discharge Review Board (ADRB) and the ABCMR, and cautioned him that in 1969, the ABCMR only changed 2 percent of the discharges it reviewed, and that statistics were furnished to the applicant so that he would know that if, as was likely, he was issued an undesirable discharge, in all likelihood, that discharge would remain with him for the rest of his life.

9.  On 17 July 1976, the applicant completed a DA Form 41 (Record of Emergency Date).  On this form he added his spouse based on his recent marriage.  He also added a child with a date of birth of 2 October 1975. 

10.  On 20 July 1976, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

11.  In his request for discharge, the applicant also acknowledged that he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf.

12.  In his statement, the applicant essentially stated that he entered the service for medical benefits, schooling, and veterans benefits, but that he went AWOL because of marriage problems and the fact that the medical benefits were not good and that he was not allowed to go to school.  He also stated that the Army was no place for a married person, and he wanted out of the Army because he could not adjust to the military life.  He also asserted that he would go AWOL 
again if he were returned to duty.  Additionally, he acknowledged that he understood that he would lose all benefits, including headstone marker, loans, and burial flags, and that he understood what an undesirable discharge was and he was willing to accept such a discharge.  

13.  On 5 August 1976, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.  He also directed that the applicant be reduced to the lowest enlisted grade.  On 23 August 1976, the applicant was discharged accordingly.  

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

16.  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.

17.  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.

18.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's contention that he was guaranteed to remain in the United States if he enlisted for 3 years was noted.  However, his enlistment contract made no such guarantee, and the applicant failed to provide any evidence to support this contention.  While it was noted that he was reassigned to infantry duties shortly after completing his on-the-job training in MOS 76Y, his enlistment contract did not specify that there was a mandatory amount of time he would serve in MOS 76Y.

3.  The applicant's contention that his family was the reason he asked for and was guaranteed stateside service while in the Army was also considered; however, at the time of the applicant's enlistment, he was not married.  The applicant claims to have married his pregnant girlfriend on his first leave from basic training; however, it is noted that he did not depart basic training until November 1974 and his military records show that his first daughter was not born on 2 October 1975.

4.  The fact that the applicant stated that he was told that he was dishonorably discharged was noted; however, the applicant is advised that while the implications associated with his undesirable discharge may feel like a dishonorable discharge, he was in fact issued an undesirable discharge and not a dishonorable discharge.  A Soldier can only be given a dishonorable discharge pursuant to an approved sentence of a general court-martial, which the applicant did not.

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. 

6.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he 
voluntarily requested discharge from the Army in lieu of trial by court-martial.  As 
he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

7.  Based on the applicant's 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, he is not entitled to either an honorable or general 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)                                         AR20090000959



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ABCMR Record of Proceedings (cont)                                         AR20090000959



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