IN THE CASE OF:	  

		BOARD DATE:	        09 APRIL 2009

		DOCKET NUMBER:  AR20090001297 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was a young and impulsive Soldier.  However, it was his military service that positively advanced his maturity.  He goes on to state that his discharge was based on one incident in more than 2 years of a relatively clean record.  He continues by stating that he is proud of his service to his country, except for his discharge status and it has helped to make him the man that he is.  He also states that it has become his mission to remove the "Other than Honorable" characterization from his records.

3.  The applicant provides no additional documents with his 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 was born on 17 September 1950 and enlisted in Roanoke, Virginia on 17 January 1969 for a period of 2 years.  He completed his basic training at Fort Bragg, North Carolina and was transferred to Fort Gordon, Georgia to undergo his advanced individual training (AIT) as a Radio Relay and Carrier Attendant.

3.  On 9 July 1969, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

4.  The applicant completed his AIT on 30 July 1969 and received orders transferring him to Vietnam with a report date to Oakland, California of 29 August 1969.  The applicant did not report as ordered.  He went into an absent without leave (AWOL) status on this date and remained AWOL until he reported to Oakland on 8 September 1969.  The records show that instead of being transferred to Vietnam, he was transferred to Fort Hood, Texas. 

5.  On 15 September 1969, NJP was imposed against the applicant for being AWOL from 29 August to 8 September 1969.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

6.  On 10 October 1969, NJP was imposed against him for failure to go to his place of duty (guard mount).  His punishment consisted of a forfeiture of pay.

7.  The applicant went AWOL, on 28 November 1969, and remained AWOL until he was returned to military control at Fort Bragg, North Carolina on 5 January 1970.  On 13 January 1970, NJP was imposed against the applicant for that offense and his punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

8.  On 14 January 1970, NJP was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

9.  The applicant was reclassified as a light vehicle driver and he was reassigned to a transportation company at Fort Bragg.

10.  On 4 May 1970, the applicant was convicted by a summary court-martial of being AWOL from 16 April to 30 April 1970.  His punishment consisted of confinement at hard labor for 30 days (suspended for 30 days) and a forfeiture of pay.

11.  On 9 July 1971, he was convicted by a special court-martial of being AWOL from 15 September 1970 to 23 February 1971 and from 20 May to 7 June 1971.  His punishment consisted of confinement at hard labor for 3 months.  He was transferred to the Confinement Training Facility at Fort Riley, Kansas to serve his confinement. 

12.  The applicant served his confinement and received orders transferring him to Fort Belvoir, Virginia, with a report date of 4 October 1971.  The applicant went AWOL and remained absent in a desertion status until he was apprehended by civil authorities in Rocky Mount, North Carolina on 1 September 1975.  He was returned to military control at Fort Bragg where charges were preferred against him on 3 September 1975.

13.  On 6 September 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf whereas he asserted that he was not good for the service and that he did not like the service.  He also stated that he could do better in civilian life.

14.  The appropriate authority approved his request and directed that he be furnished an Undesirable Discharge Certificate.

15.  Accordingly, on 23 December 1975, while in an excess leave status, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 2 months and 7 days of total active service and had 692 days of lost time due to AWOL and confinement.

16.  There is no indication in the available records to show that he ever applied to the Army Discharge review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

18.  Paragraph 3-7b also 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’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.   

4.  The applicant's contention that his discharge was based on one incident during a relatively clean 2-year period of service has been noted and found to lack merit.  The applicant had an extensive record of disciplinary actions being taken against him which included two court-martial convictions and an extensive AWOL record. 


5.  The applicant’s record of service has been reviewed; however, his service is not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct and his undistinguished record of service.  His service simply does not rise to the level of a discharge under honorable conditions.

6.  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.

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)                                         AR20090001297



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ABCMR Record of Proceedings (cont)                                         AR20090001297



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