IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090001843 


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 states, in summary, that he was called by God to preach not to serve in the military. 

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 11 September 1973.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of radio operator.  

3.  The available records do not show any significant acts of achievement or valor during his military service and private first class was the highest rank that he achieved.

4.  The available evidence shows that, on 10 December 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 1 August through 2 October 1974.  

5.  On 13 February 1975, the applicant received a bar to reenlistment.  He also accepted NJP, on 30 June 1975, for being AWOL on 17 and 18 June 1975.

6.  On 3 September 1975, the applicant was informed that charges had been preferred against him for being AWOL during the period 25 July through 26 August 1975.

7.  On 5 September 1975, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (for the good of the service – in lieu of court-martial).  He acknowledged that he was making the request of his own free will.  He acknowledged he understood that by requesting a discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the UCMJ.  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 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 16 September 1975, the applicant's immediate commander and first intermediate commander recommended approval of his discharge request due to the applicant's refusal to work, substandard performance and appearance, his failure to respond to counseling and other corrective action, and his continuing low performance.
9.  On 22 September 1975, the next intermediate commander recommended disapproval of the applicant's request for a Chapter 10 discharge.  He indicated in his memorandum to the separation authority that he had personally interviewed the applicant and the applicant had made it clear to him that he no longer wanted to proceed with his request for a Chapter 10 discharge.  The applicant indicated that he now wanted to be court-martialed, accept his punishment, and complete his enlistment.

10.  On 2 October 1975, the Staff Judge Advocate indicated applicant rehabilitation was unlikely and punishment would have little, if any, ultimate benefit to the individual or society.  He recommended approval of the discharge request and the applicant be furnished an undesirable discharge.  On the same date, the separation authority approved the applicant's request for discharge and directed that he be given a DD Form 258A (Undesirable Discharge Certificate).  

11.  On 14 October 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 and issued 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, 9 months, and 27 days of creditable active military service and he had 97 days of lost time due to being AWOL.

12.  On 25 June 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable 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, a discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP on two occasions for being AWOL and court-martial charges were also preferred against him for being AWOL.  The applicant's records show that he had 97 days of lost time due to being AWOL.

2.  The applicant admitted guilt to the charge of being AWOL and requested discharge to avoid trial by court-martial.  The applicant later informed his intermediate commander that he no longer wanted to pursue the Chapter 10 discharge, he indicated that he wanted to be court-martialed, accept his punishment, and complete his enlistment.  However, his chain of command and the Staff Judge Advocate recommended approval of his request for discharge and the applicant was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10.

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 applicant's contention that he was called by God to preach is commendable.  However, the applicant’s character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the actions that he took during his period of active service; therefore, he has not established a basis to justify upgrading his 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)                                         AR20090001843



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ABCMR Record of Proceedings (cont)                                         AR20090001843



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