IN THE CASE OF:	  

		BOARD DATE:	        20 August 2009

		DOCKET NUMBER:  AR20090005505 


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 to a fully honorable discharge.

2.  The applicant states that there is neither an error nor an injustice in his discharge and that the record is correct.  However, he believes the circumstances at the time led him to go into an absent without leave (AWOL) status.  He further states that after a field training exercise in 1975, he returned home and found that his wife was having an affair.  Additionally, he was notified by his chain of command that he would be reclassified into a new military occupational specialty (MOS), but he could not get his domestic issue out of his mind.  He ultimately went AWOL and was processed for a discharge.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty), dated 19 March 1969, 30 March 1970, 14 January 1976, and 20 June 1977, 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 records show he enlisted in the Regular Army for a period of 3 years on 10 July 1968.  He completed basic combat and advanced individual training and was awarded MOS 64A (Light Vehicle Driver).  He was honorably discharged on 19 March 1969 for the purpose of immediate reenlistment and executed a 4-year reenlistment on 20 March 1969.  He was again honorably discharged on 30 March 1970 and executed a 6-year reenlistment on 31 March 1970.  He was honorably separated on 14 March 1976 and executed a 3-year reenlistment on 15 January 1976.

3.  The applicant's records also show he completed several periods of foreign service including Germany from 30 October 1969 and 22 April 1970, the Republic of Vietnam from 21 June 1970 to 26 May 1971; and Germany again, from 11 September 1974 to 1 April 1976.  He was promoted through the ranks to sergeant (SGT)/E-5 on 21 April 1971.

4.  The applicant's records further show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, one overseas service bar, the Good Conduct Medal (2nd Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Bronze Star Medal.

5.  On 10 November 1976, the applicant departed his unit in an AWOL status and was dropped from the Army rolls on 30 November 1976.  He was apprehended by civil authorities in Dallas, TX, and returned to military control at Fort Sill, OK, on 2 December 1976.

6.  On 2 December 1976, the applicant departed AWOL again and was dropped from the rolls of the Army on the same date.  He was again apprehended by civil authorities and returned to military control on 30 May 1977.

7.  On 1 June 1977, court-martial charges were preferred against the applicant for two specifications of being AWOL from 10 November through 2 December 1976 and from 2 December 1976 through on or about 30 May 1977.  

8.  On 3 June 1977, 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).

9.  In his request for discharge, the applicant indicated 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 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. 

10.  On 8 June 1977, the applicant's immediate commander remarked that the applicant had been disillusioned with the military and that further retention was not in the best interest of the Army.  His conduct had rendered him triable by court-martial under circumstances which could have led to a bad conduct discharge or dishonorable discharge.  He recommended that the applicant be separated with an under other than honorable conditions discharge. 

11.  On 13 June 1977, 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 he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade. 

12.  On 20 June 1977, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 8 years, 
4 months, and 24 days of creditable active military service and he had 199 days of lost time.

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.  

14.  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.

15.  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.

16.  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 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.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

4.  If the applicant was experiencing personal problems he had many avenues through which to resolve them to include his chain of command and the post chaplain without committing the misconduct that he committed.

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)                                         AR20090005505



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ABCMR Record of Proceedings (cont)                                         AR20090005505



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