IN THE CASE OF:	  

		BOARD DATE:	        3 September 2009

		DOCKET NUMBER:  AR20090005352 


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 upgrade of his undesirable discharge to an honorable discharge. 

2.  The applicant provides no additional statements in support of his application.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of this 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 he enlisted in the Regular Army (RA) on
18 June 1969.  His record shows that he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in Item 41 (Awards and Decorations) that he earned the National Defense Service Medal and the Marksman Marksmanship Qualification with Rifle Bar.  

4.  The applicant's records document no acts of valor or significant achievement.

5.  On 14 October 1969, the applicant accepted NJP for dereliction of duty on 12 October 1969.  His punishment for this offense consisted of a forfeiture of $28.00 and 7 days of restriction and extra duty.

6.  On 25 February 1971, the applicant accepted NJP for failure to go to his appointed place of duty on 18 February 1971.  His punishment for this offense consisted of a forfeiture of $50.00.

7.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 23, dated 15 July 1970 shows the applicant was found guilty of being AWOL during the period 22 November 1969 to 27 May 1970.  His sentence for this offense consisted of confinement to hard labor for five months and forfeiture of $80.00 for five months.

8.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant was AWOL for the period 15 March 1971 to
23 October 1975.

9.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.

11.  The DD Form 214 issued to the applicant on 21 January 1976 shows he completed a total of 1 year, 2 months, and 7 days of creditable active military service and that he accrued a total of 1,973 days of time lost due to AWOL and confinement.  It also shows that he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), for the good of the service - in lieu of trial by court-martial and that he received an undesirable discharge with service characterized as under conditions other than honorable.  

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

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's contention that his undesirable discharge should be upgraded to honorable has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant’s record indicates he was charged with the commission of offenses 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.  Therefore, it is presumed in this case that the applicant voluntarily 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.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  Therefore, given the applicant has not provided any evidence to the contrary, Government regularity in the discharge process is presumed. 

4.  Based on his record of indiscipline which includes 1,973 days of lost time, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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 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)                                         AR20090005352



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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