IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090005915 


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 an honorable discharge.

2.  The applicant states, in effect, that his undesirable discharge is inequitable because it was based on one isolated incident which occurred during his tenure of service.  The applicant also states that he believes he had a good record up to that point.

3.  The applicant provides no documentary evidence 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 sub-stantive 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 in the Regular Army and entered active duty on 19 January 1972.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty 64C (Motor Transport Operator). The applicant completed a period of honorable service on 28 April 1974 and immediately reenlisted on 29 April 1974.  The highest rank he attained while serving on active duty was specialist five (SP5)/pay grade E-5; however, at the time of separation he held the rank of private (PVT)/pay grade E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for the following offenses:  leaving his unit in an absent without leave (AWOL) status, failing to obey a lawful regulation by speeding in a vehicle, operating a vehicle while intoxicated, violating a lawful regulation by fleeing the scene of an accident, and being drunk and disorderly in public.

4.  A DD Form 458 (Charge Sheet), dated 12 October 1976, shows the applicant was charged with two specifications of violating Article 86 of the UCMJ by leaving his unit in an AWOL status on two occasions.  This form also shows the applicant was charged with one specification of violating Article 87 of the UCMJ by missing movement.  The applicant's chain of command recommended that he be tried by a special court-martial empowered to adjudge a bad conduct discharge.

5.  On 8 October 1976, the applicant consulted with legal counsel and 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for dis-charge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he understood 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  On 9 November 1976, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and separated with an undesirable discharge certificate.
7.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, Orders 92-214, dated 11 November 1976, assigned the applicant to United States Army Transfer Point, Fort Campbell, effective 11 November 1976.

8.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Orders 92-215, dated 11 November 1976, discharged the applicant effective 11 November 1976.

9.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant confirms the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 and issued an undesirable discharge certificate.  He had completed a total of 4 years, 8 months, and 12 days of creditable active military service.  He also had 42 days of lost time due to being AWOL.

10.  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 was appropriate at the time the applicant was separated.

11.  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.  

12.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on three occasions for numerous offenses.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10, Army Regulation
635-200 to avoid trial by court-martial.  In doing so he admitted guilt to the offenses charged.

4.  The available evidence also shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  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.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or general characterization of service.

6.  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)                                         AR20090005915



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ABCMR Record of Proceedings (cont)                                         AR20090005915



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