IN THE CASE OF:	  

		BOARD DATE:	       20 AUGUST 2009

		DOCKET NUMBER:  AR20090007073 


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 fully honorable. 

2.  The applicant states that his discharge is inequitable because it was based on one isolated incident in 1 month of service with no other adverse action and that he was visiting his sick mother at the time.   He needs his discharge upgraded for medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 19 January 1971, and two character reference letters, in support of his request.

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 records show he enlisted in the Regular Army for a period of 2 years on 7 January 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Korea from on or about 20 June 1969 to on or about 9 August 1970.

4.  The applicant's records further show he was awarded the National Defense Service Medal, the Armed Forces Expeditionary Medal (Korea), and the Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  On 6 February 1970, the applicant pleaded guilty at a Summary Court-Martial to one specification of being absent without leave (AWOL) from on or about 26 December 1969 through on or about 27 January 1970.  The Court sentenced him to a forfeiture of $35.00 pay, confinement at hard labor for 15 days, and a reduction to private (PVT)/E-1.  The sentence was adjudged on 6 February 1970. 

6.  On 13 February 1970, the convening authority approved the applicant's sentence; however, he suspended the portion of the confinement for a period of 30 days.

7.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows one prior incident of AWOL from on or about 7 March 1969 to on or about 17 March 1969.  

8.  On 4 May 1970, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on the same day.  He remained in this status until 18 October 1970.  

9.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, the applicant's record contains an endorsement, dated 21 January 1971, signed by a Major General, directing his discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) with an Undesirable Discharge Certificate and immediate reduction to the lowest enlisted grade.

10.  The DD Form 214 he was issued shows he was discharged on 29 January 1971 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial.  This form shows he completed a total of 1 year, 5 months, and 20 days of creditable active service and had 212 days of lost time.

11.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s    15-year statute of limitation.

12.  The applicant submitted two character reference letters in support of his request as follows:

	a.  in a character reference letter, dated 12 March 2009, a State of Texas county engineer states that she hired the applicant as a truck driver in September 2000 and that his performance had been satisfactory and that he was promoted to an equipment operator in April 2005.  His employment ended due to an injury in July 2007; and 

	b.  in a character reference letter, dated 12 March 2009, a State of Texas county commissioner states that during his employment with the county, the applicant was punctual and kept his equipment in good condition. 

13.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

14.  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.

15.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 29 January 1971 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

4.  The applicant’s service in Korea and his record of civilian employment after discharge were noted.  However, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  Furthermore, contrary to his statement that his discharge was based on one isolated incident, his record shows three separate instances of AWOL, one of which resulted in a Summary Court-Martial.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090007073





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ABCMR Record of Proceedings (cont)                                         AR20090007073



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