IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090006378 


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.

2.  The applicant states, in effect, that he made a lot of bad choices because he was young and wild, but he is still a patriotic American and he knows better now. The applicant further states that he desires to be fully recognized as an upstanding and law abiding citizen of the United States of America. 

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 was born on 22 November 1955.  The applicant enlisted in the Regular Army on 21 October 1975, at the age of 19 years and 11 months.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty 52B (Power Generator Equipment Operator Mechanic).  At the time of discharge, the applicant held the rank of private (PV2)/pay grade E-2.

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) for leaving his unit in an absent without leave (AWOL) status from 17 May to 20 May 1976.

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.  The first specification was for being in an AWOL status from 1 July to 13 October 1976.  The second specification was for failing to go at the prescribed time to his appointed place of duty on 1 November 1976.  The applicant's chain of command recommended that he be tried by special court-martial empowered to adjudge a bad conduct discharge.

5.  On 23 November 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 undesirable 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 discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that he understood 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  On 17 December 1976, the separation authority approved the applicant's request and directed that he be discharged and furnished an undesirable discharge certificate.

7.  Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, Orders 175-108, dated 22 December 1976, assigned the applicant to Separation Transfer Point, United States Army Field Artillery Center and Fort Sill, effective 23 December 1976.
8.  Headquarters, United States Army Field Artillery Center and Fort Sill, Orders 175-109, dated 22 December 1976, discharged the applicant effective 23 December 1976.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time confirms he was separated under the provisions of chapter 10 of Army Regulation 635-200, with an undesirable discharge.  He had completed a total of 10 months and 19 days of creditable active military service and he had 107 days of lost time due to being AWOL. 

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  

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 records show he was nearly 20 years of age at the time of his enlistment and 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

3.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ for being AWOL.

4.  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 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

5.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

6.  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.  This 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.

7.  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)                                         AR20090006378



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ABCMR Record of Proceedings (cont)                                         AR20090006378



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