IN THE CASE OF:	  

		BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090004729 


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.

2.  The applicant states, in effect, that there was no injustice in his case; however, he believes that his discharge should be upgraded because was stupid, immature, and on very strong drugs during the time of his service.  He also states that he did not know what he was doing and he and his family need a new start.  He also states that he is totally disabled with stomach and spine injuries and he needs help at this time.

3.  The applicant provides a DD Form 293 (Application for the Review or Discharge or Dismissal from the Armed Forces of the United States).

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 born on 24 August 1953 and enlisted in the Regular Army in Spokane, Washington, on 3 January 1972 for a period of 3 years and training as a motor transport operator.  He completed his training at Fort Ord, California, was advanced to the pay grade of E-3 on 4 May 1972, and was transferred to Germany on 26 June 1972. 

3.  On 25 August 1972, nonjudicial punishment (NJP) was imposed against the applicant for two specifications of wrongfully appearing in uniform without rank insignia and a unit patch and one specification of wearing his hair longer than permitted by Army regulations.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of $50.00.  Both punishments were suspended for 60 days; however, on 22 September 1972, the imposing commander vacated the punishment.

4.  On 2 October 1972, NJP was imposed against the applicant for laying down and reading comic books while posted as a guard at the back gate.  His punishment consisted of a reduction to the pay grade of E-1 and extra duty for 7 days.

5.  On 2 October 1972, the applicant's commander also initiated a bar to reenlistment against the applicant.  He cited the applicant's disciplinary record and stated that his attitude and duty performance did not indicate the potential for continued active duty.  He indicated that the applicant had been given two rehabilitative transfers since his arrival and that he frequently shirked his duties and could not perform effectively without close supervision.  The applicant elected not to submit matters in his own behalf and the bar to reenlistment was approved on 20 October 1972.

6.  On 26 October 1972, the applicant was convicted by a summary court-martial of orally communicating certain indecent and obscene language.  He was sentenced to a forfeiture of pay and extra duty.

7.  On 1 November 1972, the applicant's commander initiated action to separate him from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.

8.  On 2 November 1972, the applicant was flagged pending trial by a special court-martial.

9.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records due to being loaned to the Department of Veterans Affairs Regional Office in Seattle, Washington, on 14 September 1973.  However, his records contain a duly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 26 February 1973 under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He had served 1 year, 1 month, and 24 days of total active service.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will, without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge (under other than honorable conditions) was then and still is normally considered appropriate.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7b, also 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.  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 the aforementioned requirement.
2.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he chose to voluntarily request a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  The applicant's contentions and supporting documents have been considered; however, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service in such a short period of time.  Accordingly, his service simply does not rise to the level of even a general discharge.

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.



      __________xxx_______________
               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)                                         AR20090004729



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ABCMR Record of Proceedings (cont)                                         AR20090004729



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