IN THE CASE OF:	

		BOARD DATE:	15 September 2009  

		DOCKET NUMBER:  AR20090001623 


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 discharge.

2.  The applicant essentially states that his discharge should be upgraded based upon an amnesty law passed on 21 January 1977 by President Carter and asks that his application be processed as soon as possible because he is terminally ill.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); an Internet news article, dated 21 January 2008; and a self-authored letter, dated 20 February 2009, 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 on 10 December 1973 and entered basic training on 15 December 1973.

3.  On 6 February 1974, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 2 February 1974 and remaining so absent until on or about 3 February 1974.  His punishment consisted of forfeiture of $50.00, restriction for 7 days, and extra duty for 7 days.

4.  On 16 February 1974, the applicant went absent without leave and remained in this status until he returned to military control on 13 June 1974.  On 14 June 1974, the applicant was informed that charges had been preferred against him for the aforementioned offense which was punishable under the UCMJ with a punitive discharge.

5.  On 27 June 1974, the applicant voluntarily requested 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 (Enlisted Personnel), 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 also acknowledged that he was making his request of his own free will and had not been subjected to any coercion whatsoever by any person and that he had been advised of the implications that were attached to it.  He further acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of the bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

6.  The applicant also stated that prior to completing his request, he had been afforded the opportunity to consult with appointed counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if found guilty.  He also acknowledged that although his legal counsel furnished him legal advice, this decision was his own.

7.  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, that he had been advised and understood the possible effects of an undesirable discharge, and 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 (now named the Department of Veterans Affairs), 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.

8.  In his self-authored statement, the applicant essentially stated that everyone in the Army is so hateful and that he could not stand to take so many orders and stuff you should not have to put up with from officers that think they are big stuff.  He also stated, in effect, that your freedom is taken away and you cannot do anything without asking someone first and that he could not stand the way he was treated like a little child.  Additionally, he declared that if he had to return to duty, he would be there just long enough to get away and would ensure that he would not come back no matter how long it took him.  Further, he acknowledged that he fully understood that an undesirable discharge was a bad discharge and that he was very willing to accept one, even though an undesirable discharge would hurt him in civilian life because he did not care.  Also, he acknowledged that he understood that he would lose his veterans benefits such as educational assistance, headstone marker, and unemployment compensation.

9.  On 10 July 1974, a medical examination was conducted on the applicant in conjunction with his discharge proceedings and he was found medically qualified for separation.

10.  On 5 August 1974, 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.  On 15 August 1974, the applicant was discharged accordingly.

11.  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.

12.  The applicant provided an Internet news article, dated 21 January 2008, which indicated that President Carter, on his first day in office, fulfilled a campaign promise by granting unconditional pardons to hundreds of thousands of men who had evaded the draft during the Vietnam War by fleeing the country or by failing to register.  However, military deserters were ineligible, as were convicted civilian protestors who had engaged in acts of violence.

13.  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, 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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

14.  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.  

15.  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.

16.  The Special Discharge Review Board Program (SDRP), often referred to as the "Carter Program," was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met specified criteria.

17.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.



DISCUSSION AND CONCLUSIONS:

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

2.  While the applicant contends that his discharge should be upgraded based upon the "Carter Program," not only did he not meet any of the criteria for consideration, his administrative discharge occurred outside the period covered by the "Carter Program."

3.  The fact that the applicant claims to be terminally ill is regrettable.  However, 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.

4.  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.

5.  Based on the applicant's record of indiscipline while not even completing basic training, 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.



      ___________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)                                         AR20090001623



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001623



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1