IN THE CASE OF:	  

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20090002957


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 undesirable discharge (UD).

2.  The applicant states, in effect, that his UD should be upgraded for personal and medical reasons.  He also states that all of the facts and circumstances surrounding the incident that led to his UD were not fully communicated by the military or him because of the unpopularity of the war at that time.

3.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim) 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 18 February 1970.  He completed basic combat training and advanced individual training (AIT) at Fort Lewis, Washington.  Upon completion of AIT, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he earned the National Defense Service Medal, Vietnam Service Medal, and the Combat Infantryman Badge during his tenure on active duty.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) shows he was absent without leave (AWOL) during the following four periods on the dates indicated:  5 days (3-7 June 1970), 1 day (3 August 1970), 6 days (18-23 July 1970), and 7 days (19-25 May 1971).

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offense(s) indicated:  12 June 1970, for being AWOL (3-8 June 1970); 25 July 1970, for being AWOL (18-21 July 1970); 25 July 1970, for disobeying a lawful order; 5 August 1970, for being AWOL (3-4 August 1970) and breaking restriction; and 30 September 1970, for wearing the wrong rank and failing to go to at the time prescribed to his appointed place of duty on four separate occasions.

5.  On 6 May 1971, a DD Form 458 (Charge Sheet) was prepared preferring two court-martial charges against the applicant for violating the following Articles of the UCMJ:  Article 92, two specifications of disobeying a lawful order given by his superior noncommissioned officer; and Article 90, two specifications for twice disobeying a lawful order given by his superior commissioned officer.

6.  On 19 May 1971, the applicant consulted 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 a 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).

7.  In his request for discharge, the applicant 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, 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 undesirable discharge.

8.  On 24 May 1971, the separation authority approved the applicant’s request for discharge and directed that he receive a UD under the provisions of chapter 10, Army Regulation 635-200.  On 3 June 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed 1 year, 2 months, and 27 days of creditable active military service and he accrued 19 days of time lost due to AWOL.

9.  The applicant's record is void of any medical treatment records or other documents that indicate he was ever treated for a disabling medical or mental condition during his active duty tenure.

10.  On 20 October 1980, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.

11.  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 general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's 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 a UD was authorized.

12.  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 for personal and medical reasons because the ongoing war at the time prevented the complete facts and circumstances surrounding the incident that led to his discharge from being fully communicated has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant’s four incidents of AWOL accruing 19 days of time lost and his acceptance of NJP on five separate occasions for a myriad of disciplinary infractions.  Further, the evidence of record confirms he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel and being advised of his rights and the effects of a UD, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.

3.  The evidence of record further shows the applicant voluntarily requested administrative discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  As a result, his record did not support the issuance of a GD or HD by the separation authority at the time, nor does it support an upgrade at this late date.  Therefore, given the applicant’s discharge accurately reflects his overall record of undistinguished service, there is an insufficient evidentiary basis to support granting the requested relief in this case.

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)                                         AR20090002957





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ABCMR Record of Proceedings (cont)                                         AR20090002957



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