IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090004021 


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, an upgrade of his undesirable discharge (UD).   

2.  The applicant states, in effect, that he feels it was unjust for his commanders not to take him under their wing and direct him at such a young age.  He claims this could have helped him attain his dream of a military career.  He claims the only Soldiers who showed interest in him were Vietnam veterans, who had their own problems, which included drugs.  

3.  The applicant provides character references and military medical treatment records 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 and entered active duty on 7 November 1972.  His DD Form 4 (Enlistment Contract) confirms he enlisted for the Regular Army enlistment option with no military occupational specialty (MOS) training guarantee.  

3.  The applicant’s record shows that he completed training at Fort Polk, Louisiana, and was awarded MOS 94B (Cook) on 4 May 1973.  It further shows that during his active duty tenure, he earned the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions and his accrual of 98 days of time lost during four separate periods of being absent without leave (AWOL) between 4 September 1973 and 17 November 1974.

5.  On 13 August 1973, the applicant accepted NJP for four separate specifications of failure to repair.  His punishment for these offenses was a forfeiture of $76.00 and 14 days of restriction and extra duty.

6.  On 12 October 1973, the applicant accepted NJP for being AWOL from 
4 through 19 September 1973.  His punishment for this offense was a forfeiture of $70.00, 7 days of extra duty, and a reduction to private/E-2 (PV2), which was suspended.  

7.  On 8 February 1974, the applicant accepted NJP for the  wrongful possession of marijuana and disobeying a lawful order.  His punishment for these offenses was a reduction to PV2, a forfeiture of $150.00 per month for two months, and 30 days of extra duty. 

8.  On 24 April 1974, the applicant accepted NJP for dereliction of duty and for being AWOL from 17 through 19 April 1974.  His punishment for these offenses was a forfeiture of $70.00 and 14 days of restriction and extra duty. 

9.  On 20 November 1974, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 22 July through on or about 29 July 1974; and from on or about 6 September through on or about 18 November 1974.  


10.  On 26 November 1974, the applicant consulted with 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 an UD, and of the procedures and rights available to him.  Subsequent to this legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  

11.  In his request for discharge, the applicant acknowledged that by submitting the discharge request, he was acknowledging guilt of the charge against him or of a lesser included offense therein that also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  He also confirmed that he understood that if his discharge request were approved, he could receive an UD.  

12.  The applicant also acknowledged in his discharge request that he had been advised and understood the possible effects of an UD and that as result of receiving such a discharge, he would 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 deprive of his rights and benefits as a veteran under both Federal and State law.  He finally acknowledged his understanding that he could face substantial prejudice in civilian life as a result of receiving an UD.  

13.  On 7 April 1975, the separation authority approved the applicant’s discharge request and directed the applicant be reduced to the lowest enlisted grade and that he receive an UD.  On 20 May 1975, the applicant was discharged accordingly.  

14.  The DD Form 214 (Report of Separation from Active Duty), issued to the applicant on the date of his discharge, shows he completed a total of 2 years,
2 months, and 22 days of creditable active military service and that he accrued 98 days of time lost due to AWOL.  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.  

15.  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. 

16.  The enlisted separations regulation further indicates that an under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged under the provisions of Chapter 10, Army Regulation 635-200. However, the separation authority may direct a general, under honorable conditions 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.

17.  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.

18.  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 contended that his discharge was unjust because, at such a young age, he was not properly guided by his commanders.  However, the 
record confirms he successfully completed training and served for nine months before committing any misconduct.  This clearly shows he had the ability and maturity to serve successfully had he chosen to do so.  As a result, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record further shows that the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in his receiving a punitive discharge only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving an UD.  

4.  The applicant’s record documents no acts of valor or significant achievement. However, it does reflect an extensive disciplinary history that clearly supported the UD he received, which was normal and appropriate under the regulatory guidance in effect at the time.  It is clear that his short and undistinguished record of service did not support the issue of a GD or HD by the separation authority at the time of his discharge, and it is equally clear it does not 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)                                         AR20090004021



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ABCMR Record of Proceedings (cont)                                         AR20090004021



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