IN THE CASE OF:	

		BOARD DATE:	11 June 2009  

		DOCKET NUMBER:  AR20090003555 


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 that he was told that his discharge would be "undesirable under honorable conditions," but when he received his discharge it read "dishonorable discharge."

3.  The applicant provides no additional documents 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 was inducted into the Army of the United States on 18 July 1972.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 94B (cook).  His highest grade attained was private, E-2.

3.  On 1 December 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 21 November 1972 to 26 November 1972.

4.  On 28 March 1973, the applicant accepted NJP under Article 15, UCMJ, for being AWOL from 10 March 1973 to 22 March 1973.

5.  On 21 May 1973, the applicant was convicted by a summary court-marital of being AWOL from 23 April 1973 to 7 May 1973.  He was sentenced to confinement at hard labor for 15 days and a forfeiture of $176.00 pay for 1 month.

6.  On 24 September 1973, the applicant was convicted by a summary court-marital of being AWOL from 22 August 1973 to 5 September 1973.  He was sentenced to confinement at hard labor for 21 days and a forfeiture of $200.00 pay for 1 month.

7.  On 2 October 1973, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 13-5(1), based on unfitness.  He was advised of his rights.

8.  On 2 October 1973, the applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and did not submit statements in his own behalf.  He acknowledged that he might encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further understood that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge under conditions other than honorable was issued.

9.  The separation authority approved the separation action under the provisions of Army Regulation 635-200, chapter 13, based on unfitness – frequent incidents of a discreditable nature with civil or military authorities – with issuance of an Undesirable Discharge Certificate.

10.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 16 October 1973 under the provisions of Army Regulation 635-200, chapter 13, for unfitness – frequent incidents of a discreditable nature with civil or military authorities – with issuance of an undesirable discharge characterized as under other than honorable conditions.  At the time of his discharge, he completed 1 year, 1 month, and 3 days of active military service with 56 days of lost time due to AWOL and confinement.

11.  On 27 June 1974 and 8 August 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  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.

15.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was told his discharge would be undesirable "under honorable conditions," he acknowledged in his statement that he could be ineligible for VA benefits if he received an undesirable discharge under other than honorable conditions.  A dishonorable discharge is given only to an approved sentence of a general court-martial.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  There is no evidence of record which indicates he acknowledged that he would receive an under other than honorable conditions discharge.

3.  The applicant's record of service shows he received two Article 15s and two summary courts-martial for being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable discharge or a general discharge.

4.  There is no evidence of record that the actions taken in his case were in error or unjust.

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)                                         AR20090003555



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ABCMR Record of Proceedings (cont)                                         AR20090003555



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