IN THE CASE OF:	  

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20090002286 


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 (UD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that the UD he received was unfair because he was told that his discharge would appear as if he never entered active duty.  He also states that he was denied a hearing under Article 15 of the Uniform Code of Military Justice (UCMJ), advisement of his rights, and legal counsel.  He indicates that he wants his UD changed in order that he might receive military honors and a flag at the time of his death.

3.  The applicant provides no evidentiary documents 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 show he enlisted in the Regular Army and entered active duty on 1 February 1974.  He completed basic combat training at Ft. Jackson, South Carolina and advanced individual training (AIT) at 
Fort Dix, New Jersey.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 36K (Field Wireman).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows, in Item 33 (Appointments & Reductions), that he was advanced to private (PV2)/E-2 on 29 May 1974, and this is the highest rank he held while serving on active duty.  Item 9 (Awards and Decorations) shows he earned the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar during his active duty tenure.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  On 28 September 1974, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article    128 of the UCMJ for committing an assault upon another Soldier by cutting him multiple times on the body with a knife with the intent to inflict grievous bodily harm.  On 12 October 1974, an additional charge was preferred against him for violating Article 128 of the UCMJ by punching a different Soldier in the face and kicking him in the groin, and for breaking restriction.

5.  On 23 October 1974, 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 UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge, he acknowledged his understanding that 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) [now 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.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UD.

7.  On 5 November 1974, the separation authority approved the applicant’s request for discharge and directed that he receive an UD under the provisions of chapter 10, Army Regulation 635-200.  On 11 November 1974, the applicant was 
discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time confirms he completed a total of 9 months and 11 days of creditable active military service.

8.  On 16 November 1981, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.

9.  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.  Although the separation authority may authorize a GD or honorable discharge (HD) if warranted by the members record, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the issuance of an UD was authorized.

10.  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 contention that his UD should be upgraded to GD because he was told that the character of his discharge would appear as if he never entered the Army and because he was not given due process has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was twice charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, the applicant voluntarily requested discharge from the U.S. Army in lieu of trial by court-martial.  In doing so, he admitted guilt to offenses under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  As a result, an upgrade of his discharge to a GD would not be appropriate.

3.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UD the applicant received was normal and appropriate under the regulatory guidance, and his overall undistinguished record of service clearly did not support the issuance of a GD by the separation authority at the time, nor does it support an upgrade now.

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 this 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)                                         AR20090002286



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ABCMR Record of Proceedings (cont)                                         AR20090002286



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