BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090001666 


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 a general discharge.

2.  The applicant essentially states that he served honorably from 23 April 1971 to 25 January 1973 and requests an upgrade of his undesirable discharge so that he can obtain benefits from the Department of Veterans Affairs (DVA).  He also contends that his undesirable discharge should be upgraded due to his previous honorable service and that he was not aware that he may be eligible for DVA benefits due to his previous honorable service.   

3.  The applicant provides his DD Forms 214 (Report of Separation from Active Duty) for the period 23 April 1971 to 25 January 1973 and from 26 January 1973 to 15 October 1974 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 23 April 1971.  He completed basic and advanced individual training and was awarded military occupational specialty 13A (Field Artilleryman).  He attended airborne training but failed to complete this training due to a medical injury.  He then began serving a tour in a tour in the Panama Canal Zone on 8 December 1971.  On 26 January 1973, he reenlisted for a period of 6 years.  He returned to the continental United States on 19 March 1973 and was reassigned to Fort Benning, Georgia.  

3.  On 15 November 1973, the applicant was convicted by a summary court-martial for absenting himself without authority from his unit on or about 3 July 1973 and remaining so absent until on or about 10 August 1973, and for absenting himself without authority from his unit on or about 27 August 1973 and remaining so absent until on or about 11 October 1973.  He was sentenced to a reduction in rank and pay grade from specialist four/E-4 to private/E-1 and restriction for 60 days.

4.  On 26 November 1973, the applicant went absent without leave and was subsequently dropped from the rolls of the Army and classified a deserter.  He remained in this status until he was apprehended by civil authorities for an unknown offense.  He was also charged with rape and aggravated sodomy of a woman other than his wife, but those charges were dropped due to insufficient evidence.  He was returned to military control on 12 July 1974. 

5.  On 5 September 1974, the applicant was informed that charges had been preferred against him for absenting himself without authority from his unit on or about 26 November 1973 and remaining so absent until on or about 12 July 1974, an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

6.  Also on 5 September 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.

7.  The applicant also stated that prior to completing his request, he had been afforded the opportunity to consult with appointed counsel for consultation, 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.  

8.  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 DVA), 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.

9.  In his self-authored statement, the applicant essentially stated that his life was so messed up with the Army that he and his wife could not get along and that his wife told him that she could leave him if he stayed in the Army, which she actually did by relocating to Texas.  He also stated that he would need to get out of the Army if he wanted his wife and baby and that he loved them and did not want to be away from them anymore.  Additionally, he declared that he just wanted to get his mess over with so that he and his wife could raise their child and that he could not make it in the Army anymore.  

10.  On 18 September 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 October 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.  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.

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 undesirable discharge should be upgraded to a general discharge. 

2.  While the applicant contends that his discharge should be upgraded based upon his prior period of honorable service, his DD Form 214 that was issued on 15 October 1974 accurately reflects that he was discharged under other than honorable conditions with an undesirable discharge in accordance with regulatory guidance, and the fact that the applicant is attempting to secure DVA benefits is not a compelling reason to change his discharge.

3.  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.  Evidence of record clearly shows 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 (emphasis added) 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, 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)                                         AR20090001666



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ABCMR Record of Proceedings (cont)                                         AR20090001666



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