IN THE CASE OF:	  

		BOARD DATE:	        1 July 2009

		DOCKET NUMBER:  AR20090006731 


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 (UD) be upgraded.

2.  The applicant states that his discharge should be upgraded because it's been over 20 years since his discharge was issued.

3.  The applicant provides no 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.  The applicant's record shows he enlisted in the Regular Army (RA) and entered active duty on 30 June 1970.  He was trained in and awarded military 
occupational specialty (MOS) 13B (Field Artillery Crewman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to private (PV2)/E-2 on 9 November 1970, and that this is the highest rank/grade he attained while serving on active duty.  It also shows that during his tenure on active duty he earned the National Defense Service Medal and Marksmanship Qualification Badge with Rifle (M-16) Bar.  His record documents no acts of valor or significant achievement.  

4.  On 9 September 1970, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for, on or about 25 August 1970, being absent without leave (AWOL) from his unit until on or about 3 September 1970.  The punishment imposed was forfeiture of $35.00 per month for two months.

5.  On 18 June 1974, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for four specifications of violating Article 86 of the UCMJ for the following periods of AWOL:  3 January 1971 until on or about 9 February 1971; 16 February 1971 until on or about 25 February 1971; 9 April 1971 until on or about 5 August 1971; and 16 August 1971 until on or about 6 June 1974.

6.  On 20 June 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge the applicant 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD and elected to submit a statement in his own behalf.

8.  In the statement he provided with his discharge request, the applicant indicated that he enlisted in the Army because he really had no other choice.  It was either the Army or go to a children's home.  He states his parents were having problems when he first went AWOL due to his stepfather's drinking 

problem, and that he tried to help them out as best as he could.  He states that after he got married his wife became ill during pregnancy, almost losing the baby on two occasions.  She became confined to bed and needed someone with her.  He states after his son was born he suffered from blood clots on his brain and other illnesses requiring minor surgery.  He also states that his wife's nerves were shot and she continually had epileptic seizures, and she was no longer emotionally or physically fit to cope with everyday problems.  He further stated he was needed at home to care for his wife and children and that if his discharge wasn’t approved he would again go AWOL.

9.  On 27 June 1974, the separation authority approved the applicant’s request for discharge and directed that he receive an UD.  On 30 June 1974, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of court-martial, and that he received an UD.  It further shows that at the time he had completed 9 months and 8 days of creditable active service during the period covered by the DD Form 214 and he had accrued 1,193 days of time lost due to AWOL.  

10.  On 12 August 1977, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable, and it voted to deny his request for a change to the characterization of his service and/or to the reason for his separation.  

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.  The separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant’s discharge, the regulation provided for the issuance of an UD.    

12.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  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's contention that it has been over 20 years since his UD and, therefore, should be upgraded was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UD, which was consistent with regulatory policy in effect at the time, and accurately reflected the applicant's overall record of service.  

4.  The applicant’s record is void of any acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his accrual of 1,193 days of time lost due to AWOL.  As a result, his overall record did not support the issuance of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this time.

5.  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)                                         AR20090006731



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ABCMR Record of Proceedings (cont)                                         AR20090006731



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