IN THE CASE OF:	

		BOARD DATE:	18 August 2009    

		DOCKET NUMBER:  AR20090004985 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states in effect that he resigned to avoid court-martial.  He was told to do this by his commander, they never told him his discharge would be under other than honorable conditions.  The regulation stated that he should have received counsel before they accepted his resignation.  He served honorably under two discharges.  He served in Vietnam and was awarded the Vietnam Service Medal. He served a tour in Germany and he would have never resigned if he knew this was going to be the outcome.  He knows that he made a mistake, but he also believes the punishment was unjust.  The Army was his life and he is asking that his discharge be upgraded to an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a self-authored statement 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 22 October 1962 for a period of 3 years.  He completed the required training and was awarded military occupational specialty 12B (Combat Engineer).  On 28 January 1964, the applicant was honorably discharged after serving 1 year, 3 months, and 7 days of honorable active duty service.  On 29 January 1964, the applicant immediately reenlisted for a 6-year term of service.  He was honorably discharged on 30 October 1969; he served a total of 7 years and 8 days of honorable active duty service and attained the pay grade of E-6. 

3.  On 31 October 1969, the applicant immediately reenlisted for a period of 
6 years.  

4.  On 21 May 1970, court-martial charges were preferred against the applicant for two specifications of making a fraudulent travel voucher claim on or about 
21 January 1970; one specification of wrongfully obtaining government housing by falsely pretending he was married during the period 21 January 1970 to
21 April 1970; one specification of wrongfully having sexual intercourse with another woman while still married between on or about 21 January 1970 to on or about 21 April 1970; and one specification of wrongfully cohabiting with another woman not his wife from about 21 January 1970 to about 21 April 1970.

5.  On 27 May 1970, the applicant requested discharge for the good of service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he had not been subjected to coercion with respect to this request for discharge and had been advised of the implications of an undesirable discharge.  He acknowledged that he understood that as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  Prior to completing this form the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  On 27 May 1970, the applicant's immediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

7.  On 3 June 1970, the applicant's intermediate commander also recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

8.  On 17 June 1970, the separation authority approved the applicant’s request for discharge and directed he be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 12 July 1970, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of court-martial with a character of service of under other than honorable conditions.  He completed a total of 7 years, 8 months, and 20 days of creditable active military service.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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.  An under other than honorable conditions discharge is normally considered appropriate.

11.  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.  

12.  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 contentions that his discharge should be upgraded because he never received counseling and he resigned to avoid court-martial were carefully considered and found to be insufficient in merit.

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. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record also confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  There is no evidence and the applicant has not provided any evidence that shows that the punishment he received was inequitable or unjust.

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 did not submit evidence that would satisfy this requirement.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.






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)                                         AR20090004985





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ABCMR Record of Proceedings (cont)                                         AR20090004985



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