IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20090001092 


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 be upgraded to an honorable or a general, under honorable conditions discharge.  

2.  The applicant states that his discharge was the result of a number of minor indiscretions and that he was not afforded proper legal counsel.  He further states that the standards of proof were relaxed in order to facilitate the appearance of good order and discipline and his superiors were subjected to undue command influence.  He believed that his discharge would be automatically reviewed.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  On 23 April 1970, the applicant was inducted into the Army of the United States.  On 28 April 1970, he was discharged for the purpose of enlistment into the Regular Army.  He subsequently enlisted on 29 April 1970.  He completed training in military occupational specialty (MOS) 68F (aircraft electrical repairman) and was advanced to the rank/pay grade of specialist four (SP4)/E-4. He arrived in Vietnam on 5 January 1971 and was transferred to Korea on
1 March 1971.

3.  On 9 July 1971, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for willful disobedience of a commissioned officer.  The punishment consisted of reduction to the rank/pay grade of Private First Class (PFC)/E-3 (suspended for 2 months) and extra duty for 10 days. 

4.  On 27 October 1971, he received another NJP, this time for failure to go at the time prescribed to his appointed place of duty, to wit: guard duty.  The punishment consisted of forfeiture of $15.00 for the period of one month, and
7 days of restriction and extra duty.  

5.  The specific facts and circumstances of the applicant's separation process are not contained in the available records; however, his records contain a duly constituted DD Form 214 with an ending period of 13 April 1972 that shows the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with a Separation Program Number of 246 (discharge for the good of the service).  The DD Form 214 also shows the applicant was discharged with a character of service of under conditions other than honorable and issued an Undesirable Discharge Certificate.  He had completed 1 year, 11 months, and 15 days of total creditable active service with no lost time.

6.  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.

7.  Army Regulation 635-200, in effect at the time, provided that a Soldier whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may request a discharge for the good of the 

service in lieu of a trial by court-martial.  The regulation required that there was no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was also required to sign the request indicating he understood that he may receive a discharge under other than honorable conditions and the adverse nature of such a discharge.  The regulation also provided that an Undesirable Discharge Certificate will normally be furnished to an individual who is discharged for the good of the service and that the reason for discharge will be “FOR THE GOOD OF THE SERVICE, SPN 246.”

8.  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.

9.  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 states that his discharge was the result of a number of minor indiscretions; that he was not afforded proper legal counsel; that the standards of proof were relaxed in order to facilitate the appearance of good order and discipline; and that his superiors were subjected to undue command influence.

2.  The regulations governing the Board’s operation require a presumption that the discharge process was in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.  

3.  The applicant's claim that he was discharged because of a number of minor indiscretions is contrary to the evidence showing that he was discharged for the commission of a serious offense for which a punitive discharge was authorized.  

4.  There is no available evidence to support the applicant's assertions.  


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.  There is no documentation to support the applicant's contention and no rational to support the implied conclusion that those alleged circumstances would warrant 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.



      __________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)                                         AR20090001092



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ABCMR Record of Proceedings (cont)                                         AR20090001092



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