IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090000968 


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 general discharge to an honorable discharge.

2.  The applicant states that he had over two years of good service in the Army.

3.  The applicant provides a copy of a self-authored statement, dated 18 January 2009; a copy of his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 June 1978; a copy of a previously submitted undated appeal to the Army Discharge Review Board (ADRB); a copy of his high school diploma, dated March 1983; and a copy of his Associate in Applied Science degree, dated May 1991, 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 25 October 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64A (Motor Vehicle Driver).  He was also awarded MOS 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

4.  The applicant's records also show he completed a foreign-service tour in Korea from on or about 13 March 1968 to on or about 7 April 1969.  He was subsequently reassigned to Fort Hood, TX.

5.  The applicant's records further show he was awarded the National Defense Service Medal, the Armed Forces Expeditionary Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

6.  On 26 March 1970, the applicant accepted nonjudicial punishment under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 2 February 1970 through on or about 13 March 1970.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $100.00 pay per month for 2 months, 60 days of restriction, and 15 days of extra duty.

7.  On 17 June 1970, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 17 July 1970.  He was apprehended by Federal authorities and was returned to military control on 8 May 1978.

8.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 7 June 1978 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial.  This form also shows he received a character of service of other than honorable conditions and that he completed 2 years, 7 months, and 1 days of creditable active service and had 2,920 days of lost time.

9.  On 22 October 1980, the ADRB directed the applicant's discharge be changed to an under honorable conditions (general) discharge.  Accordingly, his original DD Form 214 was voided and he was issued a new DD Form 214 that shows his new character of service as general.




10.  In his self-authored letter, dated 18 January 2009, the applicant states that he left the Army because he was the oldest of 13 children and needed to take care of his family.  He adds that in the 1970s, one of his brothers had a very bad car accident; so, he went home to take care of his family.  He later worked in a security office, was married, and had five children.  He concludes that all he wanted to do was take care of his family.  He felt he did the right thing at the time.

11.  In a previously undated appeal to the ADRB, the applicant provides an overview of his military history and blames the Army for taking too long to separate him.  He adds that he was at home all this time because of hardship and that his unauthorized absence accrued and developed into a lengthy period of time.  He also provides an overview of his awards, decorations, qualifications, character, and assignment in Korea, and concludes that as a matter of justice, his discharge should be upgraded.

12.  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.

13.  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.

14.  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 general discharge should be upgraded to fully honorable.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 7 June 1978 under the provisions of chapter 10 of Army Regulation 635-200 for the convenience of the government, in (Personnel Separations) in lieu of a court-martial. 

3.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

4.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  The applicant appears to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  The rights of the applicant are presumed to have been fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  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.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090000968



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ABCMR Record of Proceedings (cont)                                         AR20090000968



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