IN THE CASE OF:	  

		BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090005940 


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 under other than honorable conditions discharge be upgraded. 

2.  The applicant states, in effect, due to the nature of his discharge the Department of Veterans Affairs (VA) has denied him treatment.

3.  The applicant provides no additional documentary evidence in support of this case.

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 was inducted in the Army of the United States on 3 May 1971 for a period of 2 years.  He completed the required training and was awarded military occupational specialty 63C (Track Vehicle Mechanic).  The highest grade he attained was pay grade E-3.

3.  On 20 May 1971, the applicant received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 15 May 1971 through 18 May 1971.  His imposed punishment was a forfeiture of $30.00 pay, 14 days of restriction, and 14 days of extra duty.

4.  On 9 August 1971, the applicant received NJP for failing to obey a lawful order.  His imposed punishment was 14 days of restriction and 14 days of extra duty.

5.  On 21 February 1972, the applicant received NJP for not being in a complete and presentable military uniform; for reporting for guard duty in an unclean uniform, a dirty weapon, for needing a haircut, and for failure to go to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-2, (suspended for 60 days), a forfeiture of $83.00 pay, and 7 days of extra duty.

6.  On 21 August 1972, the applicant received NJP for being AWOL from            7 through 21 August 1972.  His imposed punishment was a reduction to pay grade E-2 (suspended for three months), a forfeiture of $70.00 pay, 14 days restriction, and 14 days of extra duty.

7.  On 15 December 1972, court-martial charges were preferred against the applicant for two specifications of being AWOL, from 25 August 1972 through 
13 September 1972 and from 17 September 1972 through 8 December 1972.  

8.  On 19 December 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under conditions other than honorable and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, the request was made of his own free will and he was not coerced into making the request.  The applicant understood that by submitting the request for discharge, he acknowledged that he was guilty of the charge against him.  He also acknowledged 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge (UD).  The applicant submitted a statement in his own behalf.  The applicant stated in effect, that he was not cut out to be a Solider and he knew it would be difficult for him to return to duty with a rank of E-1, therefore, he was requesting to be discharge from the Army.

9.  On 16 January 1973, the separation authority approved the applicant’s request for discharge and directed that he be that he be issued an Undesirable Discharge Certificate.  

10.  On the same day, the applicant was discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provision of Army Regulation 635-200, chapter 10, in lieu of court-martial with a UD and a characterization of service of  under other than honorable conditions.  He completed 1 year, 4 months, and      1 day creditable military service and 124 days of lost time.

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.  An under other than honorable conditions discharge is normally considered appropriate.  At the time, a UD was normally given.

12.  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.

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.

14.  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 contentions were carefully considered and found to be without merit.  There is no evidence and the applicant has not provided any evidence that shows that the punishment 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 Uniform Code of Military Justice 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 also 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.  

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

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)                                         AR20090005940



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ABCMR Record of Proceedings (cont)                                         AR20090005940



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