IN THE CASE OF:	  

		BOARD DATE:	        13 AUGUST 2009

		DOCKET NUMBER:  AR20090005345 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that his problems were the result of poor judgment, drugs, and the fact that he was shot during off-duty hours.  He adds that he had a wife and a child at the time.  The first sergeant was aware of his addiction, but no one did anything to help him.  He was essentially given a choice and he made a poor judgment call to get out.  However, he has felt ashamed over the years and wanted to serve his country again, but could not due to the character of his service.  

3.  The applicant provides a copy of his DD Form 214, dated 24 October 1978, in support of his request.

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 he enlisted in the Regular Army for a period of 3 years on 26 October 1975.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 76Y (Supply Specialist).  The highest rank/grade he attained was private first class (PFC)/E-3. 

3.  The applicant's record also shows he was awarded the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars. 

4.  The applicant's record reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 25 February 1977, for being absent without leave (AWOL) during the period on or about 4 February 1977 through 13 February 1977.  His punishment consisted of a forfeiture of $180.00 pay for 2 months, 21 days of restriction, and 21 days of extra duty; 

	b.  on 22 September 1977, for being AWOL during the period on or about 16 September 1977 through 19 September 1977.  His punishment consisted of a forfeiture of $50.00 pay, a reduction to private (PV2)/E-2, and 14 days of extra duty; 

	c.  on 16 March 1978, for failing to go to his appointed place of duty at the time prescribed on 6 and 7 March 1978.  His punishment consisted of a reduction to PV2/E-2; and

	d.  on 14 June 1978, for being AWOL during the periods on or about 19 May  through 23 May 1978 and on 16 May through 31 May 1978.  His punishment consisted of 30 days of Correctional Custody Facility (CCF) (suspended until
12 July 1978). 

5.  On 12 June 1978, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 15 June through 5 September 1978.  

6.  On 8 September 1978, 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 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).

7.  In his request for discharge, the applicant acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could 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. 

8.  On an unknown date in September 1978, the applicant’s immediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge.

9.  On 13 September 1978, the applicant's intermediate commander also recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service.

10.  On 17 September 1978, the applicant was admitted to the U.S. Army Hospital at Fort Carson, CO, after suffering a gunshot wound the previous night.  An investigation revealed that at the time of the incident, the applicant was assigned to the Personnel Control Facility at Fort Carson and he was restricted to the premises unless specifically authorized a pass privilege from the facility commander.  At the time of his incident, he was not authorized a pass and he was determined to be AWOL.  His injury was determined to be "Not in Line of Duty-Due to Own Misconduct."

11.  On 5 October 1978, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 24 October 1978.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  He had completed 1 year, 8 months, and 8 days of creditable active service and he had 113 days of lost time due to being AWOL.

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

13.  Army Regulation 635-200 (Personnel Separations) 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.  A discharge under other than honorable conditions is normally considered appropriate. 

14.  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.

15.  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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.



3.  There is no evidence that the applicant suffered from a drug problem or that he addressed such a problem with his chain of command or other support channels.  Furthermore, there is no evidence that the applicant had a drug related problem that contributed to his behavior and multiple periods of being AWOL. 

4.  In order to justify correction of a military record, the applicant must show, 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.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090005345



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ABCMR Record of Proceedings (cont)                                         AR20090005345



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