IN THE CASE OF:	  

		BOARD DATE:	         3 September 2009

		DOCKET NUMBER:  AR20090005494 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that he was sick at the time of his discharge

3.  The applicant provides no additional documentary evidence to support 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 (RA) on 12 September 1978.  Records show that he did not complete basic combat training and was not awarded a military occupational specialty.  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  The applicant’s records do not show any acts of valor or significant achievement during his military service.

4.  On 12 December 1978, the applicant accepted non-judicial punishment (NJP) for disrespect to a noncommissioned officer and disrespect to a commissioned officer on 18 November 1978 and 19 November 1978, respectively.  His punishment for these offenses consisted of a forfeiture of $209.00 for two months and 45 days of restriction and extra duty.

5.  On 20 December 1978, the applicant accepted NJP for breaking restriction on 15 December 1978 and 17 December 1978.  His punishment for these offenses consisted of a forfeiture of $93.00. 

6.  On 28 December 1978, the applicant accepted NJP for possession of marijuana on 14 December 1978.  His punishment for this offense consisted of a forfeiture of $209.00 for two months and 30 days of restriction and extra duty.

7.  The applicant’s records contains a DD Form 458 (Charge Sheet), dated 11 October 1979, which indicates he was charged for being absent without leave (AWOL) during the period 14 January 1979 to 5 October 1979. 

8.  The applicant’s records are void of any medical documentation to show that he was ill prior to his separation.  However, his record contains an endorsement, dated 24 October 1979, signed by his company commander which shows that the applicant was medically examined as part of the separation process and found to be qualified for separation by proper medical authority.

9.  On 12 October 1979, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

10.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  On 18 November 1979, the separation authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge.  On 7 December 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge confirms he completed a total 6 months and 4 days of creditable active military service with 264 days of lost time due to AWOL and confinement.

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

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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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 he was sick at the time of his discharge and that his discharge should be upgraded was carefully considered.  However, there is no evidence of record to support his contention that he was ill at the time of his separation.

2.  The applicant’s record shows 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.  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.  Based on his record of indiscipline which includes three instances of NJP and 264 days of being AWOL, 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 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.



      ___________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)                                         AR20090005494



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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