IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090001759 


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, an upgrade of his undesirable discharge.  

2.  The applicant states that he would like his discharge upgraded.

3.  The applicant did not provide any additional documentary evidence in support of 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's record shows he enlisted in the Regular Army for a period of 2 years on 21 September 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant's record also shows he served in Germany from on or about 23 February 1972 to 10 September 1973.  His awards and decorations include the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His record does not show any achievements or acts of special recognition during his military service.

4.  The applicant’s record reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 14 December 1971, for sleeping on his bunk during security guard on or about 11 December 1971.  His punishment consisted of a forfeiture of $40.00 pay for 1 month;  

	b.  on 6 April 1972, for being disrespectful in language towards a superior noncommissioned officer (NCO) on or about 4 April 1972.  His punishment consisted of 14 days of extra duty, 10 days of restriction, and a forfeiture of 7 days’ pay;

	c.  on 20 April 1972, for sleeping on guard duty on or about 14 April 1972 and disobeying a lawful order on or about 14 April 1972.  His punishment consisted of a forfeiture of $80.17 pay per month for 1 month (suspended for 60 days); 

	d.  on 11 July 1972, for disrespecting a superior commissioned officer on or about 5 July 1972, failing to go at the prescribed time to his appointed place of duty on or about 10 July 1972, and disobeying a lawful order on or about 11 July 1972.  His punishment consisted of reduction to private (PV1)/E-1, a forfeiture of $80.17 pay for 1 month, 14 days of restriction, and 14 days of extra duty; and

	e.  on 20 July 1972, for disobeying a lawful order (twice) on or about 14 July 1972, for disobeying a lawful order on or about 20 July 1972, and for being disrespectful in language towards a superior NCO on or about 20 July 1972.  His punishment consisted of 7 days of correctional custody. 

5.  On 17 July 1972, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against him citing his prior misconduct of disobeying orders, being disrespect, and failure to be at his appointed place of duty.  He was furnished a copy of this bar; however, he elected not to submit a statement in his own behalf.  The bar was ultimately approved by his battalion commander on 
21 August 1972.
6.  On 10 November 1972, the applicant was arrested by the Schweinfurt Military Police for assaulting (a German National) by striking him with his fist, knocking him to the ground, and kicking him in the head, on 9 November 1972.  

7.  On 11 November 1972, court-martial charges were preferred against the applicant for one specification of committing an assault against an individual by striking and kicking him in the face with his fists and feet and thereby intentionally inflicting grievous bodily harm upon him (fracturing his skull). 

8.  On 12 January 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he acknowledged he understood that if the 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

10.  On 17 January 1973, the applicant’s immediate and intermediate commanders recommended disapproval of the applicant’s request.

11.  On 17 January 1973, the applicant’s senior commander recommended approval of the applicant’s request and further recommended an Undesirable Discharge Certificate.

12.  On 19 January 1973, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation
635-200, for the good of the service, and directed that he be reduced to the lowest enlisted grade and provided an Undesirable Discharge Certificate.  On 
12 March 1973, the applicant was discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he had completed 1 year, 5 months, and 22 days of creditable active military service.

13.  On 29 July 1977, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

14.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

15.  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.

16.  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. 

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on the applicant’s record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

4.  In order to justify correction of a military record, the applicant must show, 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.



      _______ _   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)                                         AR20090001759



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ABCMR Record of Proceedings (cont)                                         AR20090001759



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