IN THE CASE OF:	  

		BOARD DATE:	        19 MAY 2009

		DOCKET NUMBER:  AR20090002830 


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 an upgrade of his discharge.

2.  The applicant states that he is a grandfather now and does not want his grandchildren to know what he did in the past.

3.  The applicant provides a Standard Form 180 (Request Pertaining to Military Records), dated 22 December 2008, 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 records show he enlisted in the Regular Army for a period of 4 years on 29 June 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records further show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition during his military service.

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 3 January 1976, for breaking restriction on or about 12 December "1976."  His punishment consisted of a forfeiture of $87.00 pay (suspended for 90 days), 7 days of restriction, and 7 days of extra duty;

	b.  on 29 November 1976, for being absent without leave (AWOL) during the period on or about 29 October 1976 to on or about 9 November 1976.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $175.00 pay for 2 months (all in excess of $100.00 per month for 2 months was suspended for 90 days), 45 days of restriction (all in excess of 20 days was suspended for 90 days), and 45 days of extra duty (all in excess of 20 days was suspended for 90 days); and

	c.  on 27 January 1978, for being disrespectful in language toward a superior noncommissioned officer on or about 12 January 1978.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended until 26 April 1978), a forfeiture of $100.00 pay ($25.00 suspended until 26 April 1978), and 10 days of extra duty.  However, on 8 February 1878, the suspension of punishment of a forfeiture of $100.00 pay and 10 days of extra duty was vacated and the unexecuted portion of the punishment was ordered executed.

5.  On 22 February 1978, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 23 March 1978.  He was apprehended by civil authorities in Duncanville, TX, and returned to military control on 28 July 1979.

6.  On 23 August 1979, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 22 February 1978 through on or about 28 July 1979.

7.  On 21 August 1979, 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 discharge or a discharge under other than honorable conditions, 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).

8.  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 that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 31 August 1979, the applicant's immediate commander recommended approval of the applicant’s discharge with a discharge under other than honorable conditions.

10.  On 11 September 1979, 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 Under Other than Honorable Conditions Discharge Certificate and be reduced the lowest enlisted grade.  On 18 September 1979, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 1 year, 9 months, and 17 days of creditable active military service and had 521 days of lost time.

11.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

12.  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.

13.  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.

14.  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 his discharge should be upgraded.

2.  The evidence of record shows that the applicant was charged with the commission of an offense 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 consulted with counsel and was advised of the contemplated trial by court-martial for his offenses.  Only then did he voluntarily, willingly, and in writing, request 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.

3.  There is no evidence in the available records, nor did the applicant provide documentation, that would warrant an upgrade of his discharge.  The applicant's desire to not want his grandchildren to know what he did in the past is noted.  However, 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 that requirement.


4.  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 also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either an honorable or a general 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.



      _________XXX________________
                 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)                                         AR20090002830



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ABCMR Record of Proceedings (cont)                                         AR20090002830



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