IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090001707 


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 his discharge under other than honorable conditions be upgraded to a discharge under honorable conditions.

2.  The applicant states, in effect, that his discharge should be upgraded based on the length of time he served on active duty and the length of elapsed time since he received the discharge.

3.  The applicant provides no additional documentary evidence 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 records show he enlisted in the Regular Army on 5 December 1972.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of light weapons infantryman.  He was promoted to pay grade E-3.

3.  The applicant's records do not show any significant acts of achievement or valor during his military service.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 September 1973 for being absent without leave (AWOL) from his unit during the period 1 August 1973 through 19 August 1973.

5.  On 9 October 1974, the applicant was found guilty by a special court-martial, pursuant to his pleas, for making the following false statements under oath on 28 July 1974 which statements he did not then believe to be true, to wit:  that he did not know who shot Private R____, that he did not see anyone in the room with a gun, and that he did not know who was responsible for Private R____ being shot.  He was sentenced to hard labor without confinement for 30 days, forfeiture of $100.00 per month for 2 months, and reduction in rank to private/E-1.  The sentence was adjudged on 16 September 1974.  On 9 October 1974, the sentence was approved and was to be duly executed.

6.  On 14 April 1975, the applicant was charged with one specification of being AWOL during the period 30 September 1974 through 27 March 1975 and one specification of disobeying a lawful order on 10 April 1975.

7.  On 16 April 1975, the applicant voluntarily requested in writing a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant stated that he understood he could request this 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.

8.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that were attached to his request.  He acknowledged that by submitting his request he was admitting guilt to the charge or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation and was fully advised of the nature of his rights under the UCMJ.
9.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he had been advised and that he 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 could be ineligible for many or all benefits administered by the Veterans Administration (currently known as the Department of Veterans Affairs), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 21 April 1975, the separation authority approved the discharge under provisions of chapter 10, Army Regulation 635-200, for the good of the Service.  The applicant was to be furnished an Undesirable Discharge Certificate.

11.  On 30 April 1975, the applicant was discharged with an under other than honorable conditions characterization of service.  He was furnished an Undesirable Discharge Certificate.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant confirms he completed a total of 1 year, 10 months, and 14 days of creditable active military service with 193 days of lost time.

12.  On 26 August 1982, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

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 of the applicant's separation, an undesirable discharge was appropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he accepted NJP for being AWOL and that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The applicant's records show that he had 193 days lost due to being AWOL.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant admitted guilt and requested discharge in lieu of court-martial.

3.  Based on the applicant's record of indiscipline, his 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 a general or an honorable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The Army does not, and never has, upgraded a discharge based solely on the passage of time.

6.  The applicant's length of service was considered.  In this regard, while the applicant had 1 year, 10 months, and 14 days of creditable active service, he accepted NJP once and had court-martial charges preferred against him twice.  As such, his length of service is not considered sufficiently mitigating to upgrade a properly issued discharge.

7.  Therefore, there is no basis for granting the applicant's 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)                                         AR20090001707



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ABCMR Record of Proceedings (cont)                                         AR20090001707



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