IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004649 


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, under honorable conditions discharge (GD).  

2.  The applicant states, in effect, his contract commitment to go to Germany was broken and he was under a medical profile until his discharge.   

3.  The applicant provides no additional 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 contains a DD Form 4 (Enlistment Contract-Armed Forces of the United States), which shows the applicant enlisted for the Continental United States (CONUS) Unit of Choice Enlistment Option 4th Infantry Division.  It further shows he enlisted in the Regular Army and entered active duty on 24 August 1973, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was assigned to the 4th Infantry Division at Fort Carson, Colorado and arrived there for duty on 20 December 1973.  It further shows he was promoted to specialist four (SP4) on 8 November 1974, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private first class (PFC) on 21 September 1975, and to private/E-1 (PV1) on 2 February 1976.  His record documents no acts of valor or significant achievement.   

4.  The record shows that the applicant accrued 85 days of time lost as a result of four separate periods of being absent without leave (AWOL) between 
9 December 1974 and 12 January 1976.  

5.  On 14 May 1975, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 10 through 11 May 1975.  His punishment for this offense was a reduction to PFC (suspended), forfeiture of $50.00, and 7 days of restriction and extra duty.  

6.  On 21 September 1975, the applicant accepted NJP for being AWOL from 
12 through 15 September 1975.  His punishment for this offense was a reduction to PFC. 

7.  The applicant's Official Military Personnel File (OMPF) is void of any medical treatment records that indicate he suffered from a disabling medical condition that would have supported his separation processing through medical channels.  

8.  A DD Form 458 (Charge Sheet) on file shows a court-martial charge was  preferred against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 27 October 1975 through on or about 13 January 1976.  

9.  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 a UD, and of the procedures and rights available to him.  

10.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, 
Army Regulation 635-200.  In his request for discharge, he acknowledged that he had been advised and understood the possible effects of a 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 deprived 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.  

11.  On 12 February 1976, 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 February 1976, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) issued to him at the time shows he completed a total of 2 years,
3 months, and 4 days of creditable active military service and that he accrued 
85 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 a UD.  

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.  It 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.  At the time a UD was normally issued.  However, the separation authority may direct a 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.

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's contention that his discharge should be upgraded because his enlistment contract commitment for Germany was broken and that he was on a medical profile was carefully considered.  However, the evidence of record confirms the applicant enlisted for the CONUS unit of choice option for the 4th Infantry Division, which at the time was located at Fort Carson, Colorado, and that he was assigned to this organization.  His record is also void of any medical treatment records indicating he suffered from a disabling medical condition at the time of his discharge.  As a result, these factors are not sufficiently mitigating to support an upgrade of his UD. 

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 order to avoid a court-martial that could have resulted in his receiving a punitive discharge.  His separation processing was accomplished in accordance with the applicable regulation.   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 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. 

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)                                         AR20090004649



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ABCMR Record of Proceedings (cont)                                         AR20090004649



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