IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003507 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states since his discharge he has not committed any crimes or been involved in drugs or alcohol rehabilitation programs.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 16 August 1971 and a Department of Veterans Affairs (DVA) Form 21-4138 (Statement in Support of Claim), dated 6 January 2009.

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 enlisted in the Regular Army on 5 January 1968 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 76P (Stock Control Accounting Specialist). 

3.  On 7 February 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without proper authority on 4 February 1968, from 1300 hours until 2130 hours..

4.  On 19 May 1969, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) for the period 12 May 1969 through 18 May 1969.

5.  On 17 February 1970, the applicant was convicted, pursuant to his plea, by a special court-martial of three specifications of being AWOL for the periods  
18 October 1969 through 18 November 1969, 27 November 1969 through 
28 November 1969, and 1 December 1969 through 8 January 1970.  His sentence consisted of confinement at hard labor for two months and reduction to the grade of Private/E-1.

6.  On 1 October 1970, the applicant was convicted, pursuant to his plea, by       a special court-martial of being  AWOL for the period 2 July 1970 through          31 August 1970.  His sentence consisted of confinement at hard labor for three months and reduction to the grade of Private/E-1.

7.  A DD Form 458 (Charge Sheet), dated 30 March 1971, shows charges were preferred against the applicant for being AWOL for the period 11 January 1971 through 17 March 1971.

8.  A DD Form 458, dated 4 May 1971, shows charges were preferred against the applicant for being AWOL for the period 18 April 1971 through 3 May 1971.

9.  On 2 July 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs]; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit statements in his behalf.

11.  On 9 August 1971, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 16 August 1971, the applicant was discharged with an undesirable discharge.  He completed a total of 2 years, 7 months, and 22 days of creditable active service with 350 days of lost time due to AWOL and confinement.

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, 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.  At the time, an undesirable discharge was 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 since his discharge he has not committed any crimes or been involved in drugs or alcohol rehabilitation programs.  His good post-service conduct since his discharge is acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the applicant's good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

2.  The applicant's records show that he received two Article 15s, two special courts-martial, and had eight instances of being AWOL.  He had completed 
2 years, 7 months, and 22 days of creditable active service with 350 days of lost time due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090003507





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ABCMR Record of Proceedings (cont)                                         AR20090003507



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