IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090001823 


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 undesirable discharge be upgraded to honorable.   

2.  The applicant states that he was an idealistic young man in the 1960's.  He now regrets his actions during his assignment in Okinawa.  He felt trapped and under extreme stress due to a pending assignment to the Republic of Vietnam.  He needed to get away.  He made a wrong decision when he went absent without leave (AWOL).  Over the past 30 years he has sought counseling to reconcile his actions.  He is currently receiving counseling at the Department of Veterans Affairs (VA) Medical Center, Bronx, New York.  He has brought shame and embarrassment to himself, his family and country.  Since his discharge he has led a good and productive life.  He wishes to correct his wrongdoing that has plagued him for almost 40 years.  He realizes that being young and immature is not an excuse.  He has mentally paid the price for many years and asks for his discharge to be upgraded.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  On 20 October 1969, the applicant, who was 18 years and 2 months of age, enlisted in the Regular Army for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).

3.  On 23 April 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for AWOL (7 days). The punishment included reduction to pay grade E-1.

4.  On 4 May 1970, the applicant was assigned for duty as a supply clerk in Okinawa.

5.  On 19 May 1970, the applicant was promoted to private first class, pay grade E-3.

6.  On 24 July 1970, the applicant accepted NJP for breaking curfew.  The punishment included extra duty for 14 days. 

7.  On 14 September 1970, the applicant accepted NJP for failure to go to his appointed place of duty (three specifications).  The punishment included reduction to pay grade E-2 and 14 days extra duty and restriction.

8.  On 16 December 1970, the applicant was convicted by a summary court-martial of disobeying a lawful order (two specifications).  His sentence consisted of 10 days extra duty and 20 days restriction.

9.  On 25 May 1971, the applicant accepted NJP for failure to go to his appointed place of duty (two specifications).  The punishment included reduction to pay grade E-2 and 14 days extra duty and restriction.

10.  On 10 June 1971, charges were preferred under the UCMJ for violation       of Article 86, AWOL, for failure to go to his appointed place of duty (ten specifications); and for violation of Article 92, failure to obey a lawful order (ten specifications).  The first specification of each charge was withdrawn.

11.  On18 August 1971, 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, under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.  His service was and is appropriately characterized by the offense that led to the discharge.

12.  The applicant's company, battalion and brigade commanders each reviewed his request for discharge and recommended approval.  Each commander also recommended that the applicant receive an Undesirable Discharge Certificate.  

13.  The discharge authority's approval document is not available for review. However, the applicant's DD Form 214 shows that he was administratively discharged on 4 October 1971, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service.  His service was characterized as UOTHC.  He had completed 1 year, 11 months, and 6 days of creditable active duty and had 9 days of lost time.

14.  On 22 August 1973, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

15.  Army Regulation 635-200 (Personnel Separations) 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.  A discharge UOTHC is normally considered appropriate.  At the time, an Undesirable Discharge Certificate normally was issued.

16.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 3 days but not more than 30 days, is confinement for 
6 months and forfeiture of two-thirds pay per month for 6 months.  The UCMJ also provides, in pertinent part, that if an accused is found guilty of two or more offenses for none of which a dishonorable or bad-conduct discharge is authorized, the fact that the authorized confinement without substitution for these offenses is 6 months or more will, in addition, authorize a bad-conduct discharge and forfeiture of all pay and allowances.

17.  Under the UCMJ, the maximum punishment allowed for violation of Article 92, for failure to obey a lawful order, is a punitive discharge and confinement for 
6 months.

18.  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.

19.  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 he made a wrong decision when he went AWOL.  Even though he realizes that being young and immature is not an excuse, he asks for his discharge to be upgraded.

2.  The evidence of record confirms the applicant was charged with the commission of a offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 18 years of age, had satisfactorily completed training and was promoted to pay grade E-3.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090001823





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ABCMR Record of Proceedings (cont)                                         AR20090001823



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