IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090002672 


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 to an honorable discharge.

2.  The applicant states that he was young and naïve at the time and that he was not caught using marijuana, but rather voluntarily disclosed the fact that he used marijuana.  He also states that he did not try to hide the fact that he had ammunition in a locker and that where he came from, this was normal. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 19 December 1975; and several certificates of training, dated on miscellaneous dates, showing completion of various adult education programs in support of his request.

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 was born on 2 April 1957 and enlisted in the Regular Army (RA) at the age of 18 for a period of 3 years on 27 June 1975 under the one station unit training (OSUT) program.  He completed basic combat training at Fort Knox, KY, and attained the rank/grade of private (PV2)/E-2. 

3.  On 5 November 1975, while attending advanced individual training, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period from on or about 28 October 1975 to on or about 2 November 1975.  His punishment consisted of a forfeiture of $84.00 per month for one month.

4.  On 13 November 1975, court-martial charges were preferred against the applicant for one specification of stealing several items of merchandise from the Main Post Exchange on or about 9 November 1975 and one specification of being derelict in the performance of his duties in that he willfully left his appointed place of duty (guard duty) on or about 12 November 1975.

5.  On 17 November 1975, 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 or dishonorable discharge, 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 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense.  He further acknowledged he understood that if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, 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), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.


7.  On 19 November 1975, the applicant’s immediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander further remarked that the applicant admitted to him that he (the applicant) made his living for the previous two years by shoplifting.  He added that the applicant had no sense of guilt and was very apathetic toward his past actions.

8.  The applicant's intermediate and senior commanders also recommended approval with the issuance of an Undesirable Discharge Certificate.

9.  On 15 December 1975, the applicant again accepted nonjudicuial punishment under the provisions of Article 15 of the UCMJ for disobeying a lawful order on or about 12 December 1975.  His punishment consisted of a 14 days of restriction and extra duty.

10.  On 15 December 1975, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 19 December 1975, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for conduct triable by court-martial, with a character of service of under other than honorable conditions and issued a DD Form 258A (Undesirable Discharge Certificate).  This form further confirms he completed 5 months and 19 days of creditable active military service and had 5 days of time lost.

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

12.  The applicant submitted copies of several certificates of training and/or completion of various education and certification, dated on miscellaneous dates after his 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 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.  Although an honorable or general discharge is 
authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation, an undesirable discharge was considered appropriate.

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's contention that his discharge should be upgraded to honorable because he was young and immature at the time and the evidence he submitted was carefully considered.  However, it is insufficient to grant him the requested relief.

2.  The evidence of record shows that the applicant was 18 years of age at the time of enlistment and/or offenses.  However, there is no evidence that the applicant's commission of the charged offenses was a result of his age.  Additionally, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  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 of 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.


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 did not submit evidence that would satisfy this requirement.  Based on his 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.

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)                                         AR20090002672



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ABCMR Record of Proceedings (cont)                                         AR20090002672



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