IN THE CASE OF:	  

		BOARD DATE:	       21 May 2009

		DOCKET NUMBER:  AR20090002165 


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 general. 

2.  The applicant states, in effect, that he served a good 2 years in the military.  He further states that it was not right the way he was shipped off and given an infantryman military occupational specialty (MOS) of 11B without having received the training. 

3.  The applicant provides no additional documentation 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 military personnel records were not available at the time of his discharge.  He was separated on temporary records and his affidavit.  Those same records are all that are available at this time.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 

3.  On 27 March 1974, the applicant enlisted in the Regular Army.  He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was subsequently assigned duty at Fort Wainwright, Alaska.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that he was absent without leave (AWOL) during the period from 27 February to 18 April 1976.  He was apprehended by civilian authorities on or about 19 April and confined during the period from 19 April to 27 April 1976.  

5.  On 28 April 1976, the applicant was returned to military control at Fort Sill, Oklahoma. 

6.  On 30 April 1976, charges were preferred against the applicant under the Uniform Code of Military Justice for violation of Article 86 (being AWOL during the period from 27 February to 19 April 1976).

7.  On 4 May 1976, 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. 

8.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

9.  On 13 May 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  

10.  On 19 May 1976, the applicant was discharged accordingly.  He had completed a total of 1 year, 11 months, and 7 days of creditable active military service and he had accrued 61 days of lost time due to being AWOL and 15 days of excess leave.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitation.

12.  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 trail by court-martial.  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.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for a period of AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

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 contends that he served a good 2 years of active military service; therefore, he believes his discharge should be upgraded.  He further contends that he was not adequately trained to hold an infantryman MOS and he was not treated fairly.
2.  The available evidence confirms the applicant was charged with the commission of an offense 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 type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.  Notwithstanding the applicant's assertion that he was not treated fairly, there is no available evidence showing that he had any mitigating circumstances or that his AWOL offense was a reasonable solution to his problem.  Furthermore, there is no available evidence showing he was not qualified for award of an infantryman MOS.

5.  Based on his 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 renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge. 

6.  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.

7.  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)                                         AR20090002165



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ABCMR Record of Proceedings (cont)                                         AR20090002165



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