IN THE CASE OF:	

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090001618 


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 discharge be upgraded. 

2.  The applicant states, in effect, that he believes his discharge was unjust.  He was attacked twice by two groups of trainees during advanced individual training. He states he spoke with his chain of command, but did not see favorable results. He feared for his life and he went absent without leave (AWOL).  He turned himself in to authorities after 30 days.  He also states that he was court-martialed, confined, and then discharged with an other than honorable characterization of service.  

3.  The applicant provides a self authored personal statement 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 personnel records show he enlisted in the Regular Army on 17 September 1969 for a 3-year period.  He completed basic combat training and then had an extensive disciplinary history of violating the Uniform Code of Military Justice (UCMJ), specifically being AWOL.  

3.  Headquarters, U. S. Army Personnel Center, Fort Jackson, South Carolina, Summary Court-Martial Order Number 47 dated 16 October 1969 shows the applicant was found guilty, on 29 September 1969, of violating Article 121 of the UCMJ for stealing $25 from a Soldier.  The sentence was adjudged on 15 October 1969 and consisted of restriction to the company area for 30 days and a forfeiture of $50 pay. 

4.  Headquarters, Special Processing Battalion (Provisional), Fort George G. Meade, Maryland, Special Court-Martial Order Number 690, dated 5 May 1970, shows the applicant was found guilty, on 2 April 1970, of two specifications of violating Article 86 of the UCMJ by being AWOL from 18 January to 29 January 1970 and from 1 February to 1 March 1970.  The sentence was adjudged on 28 April 1970 and consisted of confinement at hard labor for 30 days and a forfeiture of $25 pay for 1 month. 

5.  On 17 August 1970, court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ, specifically for being AWOL from on or about 10 June to 6 August 1970.

6.  On 18 August 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant acknowledged he understood that if his 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 Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 25 August 1970, the applicant's commander recommended approval of the applicant's request for discharge and recommended an Undesirable Discharge Certificate.

9.  On 2 September 1970, the separation authority approved the applicant's request for discharge for the good of the service, directed that he be reduced to private/pay grade E-1, and that he be furnished an Undesirable Discharge Certificate.

10.  On 2 September 1970, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time confirms he was discharged and his characterization of service was under conditions other than honorable.  This form further confirms that he completed a total of 5 months and 12 days of creditable active military service.  He had 184 days of time lost.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200 (Enlisted Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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 CONCLUSION:

1.  The applicant contends his discharge should be upgraded; he went AWOL because he was attacked twice in training and he feared for his life.  

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

4.  There is no evidence of record and the applicant did not submit any evidence to show he was threatened while in training.  As such, this contention is not supported by the available evidence.

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 that requirement.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090001618



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ABCMR Record of Proceedings (cont)                                         AR20090001618



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