IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003361 


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.   

2.  The applicant states, in effect, that he was 17 years old and scared and when he was informed he could receive an administrative discharge instead of a court-martial.  He thought it was a good thing because he would not have to go back to jail; however, if he was found guilty by a court-martial he could receive a lot of jail time.  He also claims his ability to serve was impaired by his use of drugs and alcohol, and his homosexuality.

3.  The applicant provides no documentary evidence 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 record shows that he enlisted in the Regular Army on
17 January 1969, at the age of 17 years and 7 months.  His record shows he did not advance above the rank/grade of private (PV2)/E-2.

3.  The record shows that the applicant successfully completed basic combat training at Fort Bragg, North Carolina, on 21 March 1969.  It further shows that while en route to Fort Knox, Kentucky to attend advanced individual training (AIT), he departed absent without leave (AWOL) on 6 April 1969.  He was dropped from the rolls of the organization on 5 May 1969, and remained away for 80 days until returning to military control at Fort Riley, Kansas on 26 June 1969.  

4.  On 24 July 1969, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 6 April through on or about 26 June 1969.  The resulting sentence was confinement at hard labor for 6 months and forfeiture of $76.00 per month for 6 months.  

5.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  In a Standard Form (SF) 89 (Report of Medical History) completed by the applicant during his separation processing on 21 April 1970, the applicant indicated he was in good health.  The SF 88 (Report of Medical Examination) documenting his separation physical examination lists no defects and documents no alcohol or drug problems or any other disabling or disqualifying medical conditions.  The applicant was medically cleared for separation/retention by the examining physician.

7.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does contain an Army Discharge Review Board (ADRB) Case Report and Directive (OSA Form 172) that outlines the applicant's separation processing and a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that identifies the authority and reason for the applicant's discharge.  

8.  The OSA Form 172 indicates that on 17 April 1970, a court-martial charge was preferred against the applicant for AWOL and he consulted with legal counsel.  It further shows that after consulting with legal counsel the applicant voluntarily requested discharge and declined to submit a statement in his own behalf.  On 5 May 1970, the separation authority approved the applicant's UD and the applicant was discharged accordingly.  

9.  The DD Form 214 issued to the applicant on 5 May 1970, as amended by a DD Form 215 (Correction to DD Form 214) issued on 27 October 1983, shows he completed a total of 3 months and 4 days of creditable active military service, and that he accrued 365 days of time lost due to AWOL and confinement.  It also shows that he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of trial by court-martial and that he received an UD.  

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 trial by court-martial. An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 contentions that his discharge should be upgraded because it was too harsh given he was young and scared, and because his ability to serve was impaired by his use of alcohol and drugs and his homosexuality, were carefully considered.  However, the evidence of record documents no disabling physical or mental conditions that would have impaired the applicant's ability to serve, and his successful completion of basic combat training is an indication that he was sufficiently mature and had the ability to serve had he elected to do so. 

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include an OSA Form 172 that outlines the applicant's separation processing and a DD Form 214 that identifies the authority and reason for his discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The OSA Form 172 and DD Form 214 on file confirm the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  In connection with such a discharge, he was charged 
with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Based on the separation processing outlined in the OSA Form 172, and absent information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The UD he received was normal and appropriate under the regulatory guidance.  His undistinguished record of service clearly did not support the issue of a GD or an HD by the separation authority at the time of his discharge, nor does it support an upgrade now.  

5.  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 requirement.

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)                                         AR20090003361



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ABCMR Record of Proceedings (cont)                                         AR20090003361


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