DOCKET NUMBER:  AR20090005700 


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, that his undesirable discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states that at the time of his induction, he was called upon to be a man and to defend his country.  He states that at the same time, he was called upon to be a man and a responsible father.  He states that he could not focus on his military duties and he apologizes for the decision that he chose to make.

3.  The applicant provides no additional documentation 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.  On 14 April 1970, the applicant enlisted in the Regular Army (RA) in Los Angeles, California, for 3 years, in the pay grade of E-1.  He successfully completed his training and was awarded military occupational specialty (MOS) 36C (lineman).  He was advanced to the pay grade of E-2 on 14 August 1970 and subsequently transferred to Vietnam on 18 September 1970.

3.  The available records show that the applicant went absent without leave (AWOL) on 13 October 1970 and he remained absent until 15 November 1970.  However, his records do not show the results of any action taken based on this period of AWOL.

4.  Nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant on 30 December 1970, for willfully disobeying a lawful order of his superior noncommissioned officer (NCO) to come back to work at the motor pool.  His punishment consisted of a forfeiture of $34.00 per month for one month.

5.  On 10 February 1971, a summarized NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of an oral reprimand.

6.  On 18 March 1971, NJP was imposed against the applicant for failing to obey a lawful order issued by his superior NCO to turn in his weapon to the armorer immediately and for being disrespectful in language toward his superior NCO who was then in the execution of his office.  His punishment consisted of a reduction to the rank/grade of private (PV1)/E-1 and a forfeiture of $23.00 per month for one month.

7.  On 29 March 1971, NJP was imposed against the applicant for failing to obey a lawful order issued by his superior NCO to take his hands out of his pocket and to roll up his shirt sleeves, and for being disrespectful in language toward his superior NCO who was then in the execution of his office.  His punishment consisted of a forfeiture of $50.00 per month for 2 months.

8.  The applicant departed AWOL on 3 September 1971 and he remained absent in deserter status until he surrendered to military authorities and returned to military control on 14 April 1972 at Fort Ord, California.  His records do not specifically state the punishment imposed against him for being AWOL.  However, his records do show that he was in confinement from 19 April 1972 through 14 May 1972.


9.  The facts and circumstances surrounding the applicant’s discharge are not on file in his official records.  However, the available records show that he was discharged on 1 June 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He had completed 1 year, 3 months and 6 days of total active service and he had 313 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

10.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

11.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  Army Regulation 635-200, paragraph 3-7a, of 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.  

13.  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 undesirable discharge should be upgraded to a general, under honorable conditions discharge.



2.  The applicant's record is void of the facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offenses 
punishable under the Uniform Code of Military Justice (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 is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that 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.  His records show that he had NJP imposed against him on four separate occasions for incidents of indiscipline including failing to obey lawful orders from his superior NCO, for being disrespectful in language towards his superior NCO, and for failing to go at the time prescribed to his appointed place of duty.  It does not appear that these acts of indiscipline were related to his desire to be a “responsible father.”

4.  The applicant had 313 days of lost time due to AWOL and confinement and considering the nature of his offenses, it does not appear that the character of his service is too harsh.  The applicant’s overall record of service is properly reflected in the type of discharge that he received.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090005700



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ABCMR Record of Proceedings (cont)                                         AR20090005700



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