IN THE CASE OF:	  

		BOARD DATE:	        28 July 2009

		DOCKET NUMBER:  AR20090003741 


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 to a general discharge (GD) under honorable conditions.

2.  The applicant states, in effect, he received poor advice from his lawyer and he was too young to understand the ramifications of his discharge at the time.  He further states that he has now matured and wants to do what is right and correct the errors he made as a young man.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and two third-party statements 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 he enlisted in the Regular Army (RA) and entered active duty on 11 July 1972.  He was trained in and awarded military 
occupational specialty (MOS) 64C (Motor Transport Operator).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to private (PV2)/E-2, on 11 November 1972, and this was the highest rank he attained.  It also shows that during his tenure on active duty he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge (M-16 Rifle).  His record documents no acts of valor or significant achievement.  

4.  On 29 May 1973, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful towards his superior commissioned officer.  His punishment included 7 days of correctional custody, reduction to PV1, and a forfeiture of $50.00 pay.

5.  On 27 November 1973, the applicant accepted NJP for being absent without leave (AWOL) on 13 November 1973.  His punishment included reduction to PV1, a forfeiture of $150.00 pay for 2 months, and 45 days of restriction and extra duty (15 days suspended for 120 days).

6.  On 15 April 1974, the applicant accepted NJP for failure to go to his appointed place of duty at the time prescribed.  His punishment included restriction and extra duty for 14 days (7 days suspended for 14 days) and a forfeiture of $35.00 pay for 2 months.

7.  On 5 June 1974, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 2 through 28 May 1974 and violating Article 91 by disobeying a lawful order from a superior noncommissioned officer on or about 31 May 1974.  

8.  On 20 June 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

9.  In his request for discharge, the applicant acknowledged he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood he could encounter substantial prejudice in civilian life by reason of an UD and elected to submit a statement in his own behalf.

10.  On 1 July 1974, the separation authority approved the applicant’s request for discharge and directed that he receive an UD.  On 21 July 1974, the applicant was discharged accordingly.  The applicant’s DD Form 214 shows he was separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of court-martial, and that he was issued an UD.  It further shows he had completed 1 year, 11 months, and 18 days of creditable active service and accrued 23 days of lost time due to being AWOL.  

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  The applicant provides two third-party statements from a reverend and senior pastor, who both attest to his high moral character.  

13.  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.  The separation authority can authorize a GD, under honorable conditions or an honorable discharge if warranted by the member's overall record of service.  However, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant’s discharge, the regulation provided for the issuance of an UD.    

14.  Paragraph 3-7a of the same regulation 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.

15.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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 he was too young and immature at the time to understand the impact of his discharge was carefully considered.  However, the evidence of record confirms the applicant successfully completed training and served for nearly a year before committing any misconduct, which shows he had the ability and maturity to successfully serve if he had chose to do so.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge 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. 

3.  The applicant's post service conduct, as attested to in the third-party statements, is noteworthy.  However, this factor alone is not sufficiently mitigating to support granting the requested relief given the applicant's undistinguished record of service.  His record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his acceptance of NJP on three separate occasions and his accrual of 23 days of lost time due to being AWOL.  As a result, his overall record did not support the issuance of a GD or a honorable discharge at the time, nor does it support an upgrade at this time.

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 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)                                         AR20090003741



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ABCMR Record of Proceedings (cont)                                         AR20090003741



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