IN THE CASE OF:	  

		BOARD DATE: 	       30 July 2009

		DOCKET NUMBER:  AR20090005268 


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, he believes he should have an honorable discharge (HD) since he left the military to care for an ill spouse.

3.  The applicant provides no 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 shows that he enlisted in the Regular Army and entered active duty on 16 September 1974.  He was trained in and awarded military occupational specialty 36K (Field Wireman).
3.  The applicant's record shows he was promoted to specialist four on 2 April 1976 and that this is the highest rank he attained while serving on active duty.  The record also shows he was reduced to private/E-2 for cause on 30 March 1976, and to private/E-1 on 2 August 1976.  His record documents no acts of valor or significant achievement.

4.  The applicant's record does document a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions and his accrual of 123 days of time lost due to three separate periods of being absent without leave (AWOL) between 17 July 1975 and 11 July 1976.

5.  On 2 July 1975, the applicant accepted NJP for absenting himself from his unit without authority on 19 May 1975.  His punishment for this offense was a forfeiture of $90.00 and 14 days of restriction and extra duty.

6.  On 24 July 1975, the applicant accepted NJP for being AWOL from 17 July 1975 through 21 July 1975.  His punishment for this offense was a reduction to private/E-2 (suspended) and a forfeiture of $150.00 (amount in excess of $30.00 suspended).

7.  On 26 March 1976, the applicant accepted NJP for being AWOL from 10 March 1976 through 18 March 1976.  His punishment for this offense was reduction to private/E-2, forfeiture of $94.00 per month for 2 months, and 30 days of extra duty.

8.  On 19 April 1976, the applicant departed AWOL from his unit at Fort Campbell, Kentucky.  He remained away for 84 days until returning to military control on 11 July 1976.  On 26 July 1976, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 19 April 1976 through on or about 12 July 1976.

9.  On 10 July 1976, 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.  Subsequent to this legal counsel, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  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 his understanding that if his discharge request was approved he could receive a UD.

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

11.  On 2 August 1976, the separation authority approved the applicant’s discharge request and directed that he be issued a UD and that he be reduced to the lowest enlisted rank.  On 7 September 1976, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed a total of 1 year, 7 months and 22 days of creditable active military service and that he accrued 123 days of time lost due to being AWOL.  It also shows that he was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of administrative discharge for conduct triable by court-martial.

12.  On 12 November 1981, the Army Discharge Review Board, after careful consideration of the applicant’s records and all other available evidence, determined the applicant’s discharge was proper and equitable.  As a result, it voted not to change the character of or reason for his discharge.

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.  It further indicates that an under other than honorable conditions discharge normally is appropriate for a Soldier who is discharged under these provisions.  However, at the time of the applicant's discharge, the regulation provided for the issuance of a UD.  The separation authority may direct the issuance of a general under honorable conditions discharge (GD) if warranted by the member's overall record of service during the enlistment.  An HD was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.  Paragraph 3-7b 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 his discharge should be upgraded because his AWOL was the result of his going home to care for an ill spouse was carefully considered.  However, there is insufficient evidence to support this claim.  Further, even if this claim were true, absent any evidence that the applicant tried to resolve his personal problems through his chain of command or other appropriate Army support agencies at the time, this factor alone is not sufficiently mitigating to support an upgrade of his discharge at this late date.

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 the applicant 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 the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in him receiving a punitive discharge only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving a UD.  His record documents no acts of valor or significant achievement.  Given his extensive disciplinary history, it is clear that his short and undistinguished record of service did not support the issuance 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)                                         AR20090005268



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ABCMR Record of Proceedings (cont)                                         AR20090005268



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