IN THE CASE OF:	  

		BOARD DATE:	      22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005720 


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 general discharge.

2.  The applicant states that he was supposed to receive a general discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 24 December 1969; a copy of his birth certification; 11 pages of his service medical records showing treatment from 23 October 1968 through 29 November 1969; and a VA Form   21-4138 (Statement in Support of Claim), dated 25 March 2009, 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 that he enlisted and entered the Regular Army on 18 September 1968 for a period of 2 years.  The applicant completed the required training and was awarded military occupational specialty 11C (Infantryman Indirect Fire Crewmember).  The highest grade he attained was pay grade E-2.

3.  On 18 March 1969, the applicant received nonjudicial punishment (NJP) for wearing mixed Army and civilian clothing and for being drunk and disorderly in a public place.  His imposed punishment was a forfeiture of $20.00 pay (suspended), 7 days of restriction, and 7 days of extra duty, to run concurrently.

4.  On 21 May 1969, the applicant accepted NJP for being absent without leave (AWOL) from 20 May 1969 through 21 May 1969.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $27.00 pay, 14 days of restriction, and 14 days of extra duty.

5.  On 7 July 1969, the applicant accepted NJP for willful damage of government property and for being drunk and disorderly.  His imposed punishment was a forfeiture of $30.00 pay, 14 days of restriction, and 14 days of extra duty.

6.  On 8 December 1969, court-martial charges were preferred against the applicant for two specifications of being AWOL from 1 November 1969 through 4 November 1969 and from 6 December 1969 through 7 December 1969, for being drunk and disorderly, destruction of government property, possession of a dangerous drug, and breaking arrest.

7.  On 9 December 1969, the applicant requested a discharge for the good of service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been subjected to coercion with respect to this request for discharge and had been advised of the implications of an undesirable discharge.  He acknowledged that he understood that as a result of the issuance of such a discharge, he may be deprived of many or all Army 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.  Prior to completing this form, 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.

8.  On 24 December 1969, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with a discharge under other than honorable conditions.  He completed 1 year, 3 months, and 5 days of creditable active military service.

9.  The applicant provides a copy of his birth certification as well as 11 pages of his service medical records showing routine medical treatment from 23 October 1968 through 29 November 1969 during his military service.  He also provides a copy of a VA Form 21-4138 (Statement in Support of Claim), dated 25 March 2009, in which he states that he was hit by a car and injured his right knee.

10.  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.  An under other than honorable conditions discharge is normally considered appropriate.

11.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered; however, there is no evidence and the applicant has not provided any evidence that shows the discharge he received was inequitable or unjust.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

4.  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.



      ____________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)                                         AR20090009107



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ABCMR Record of Proceedings (cont)                                AR200900095720



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