BOARD DATE: 1 October 2009
DOCKET NUMBER: AR20090007099
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 that his undesirable discharge be upgraded to an honorable discharge.
2. The applicant states that he is requesting the upgrade based on the amount of time which has lapsed since his discharge. The applicant explains that he needs an upgrade to receive a free sales and solicitors license.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army, on 9 July 1958, was awarded the military occupational specialty of teletype operator, and was promoted to pay grade E-3. He was honorably released from active duty on 16 May 1961.
3. The applicant again enlisted in the Regular Army on 10 August 1970.
4. On 9 June 1971, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 12 March to 12 July 1971.
5. On 23 July 1971, the applicant requested discharge in lieu of court-martial for the good of the service. In this request he acknowledged that he could receive an undesirable discharge and that with such a discharge he would be deprived of many or all Army benefits. He also acknowledged he understood he may be ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of his rights and benefits as a veteran under both Federal and State law.
6. The applicant's request was approved by the appropriate authority. As a result, the applicant was issued an undesirable discharge on 18 August 1971. He had completed 4 months and 9 days of creditable service during that enlistment and he had 189 days of time lost.
7. Army Regulation 635-200 (Personnel Separations) 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
8. 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 members 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. Whenever there is doubt, it is to be resolved in favor of the individual.
9. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The Army does not have, nor has it ever had, a policy to automatically upgrade a properly issued discharge based solely upon the passage of time or to establish eligibility for benefits from other agencies.
2. The applicant had 189 days of lost time. This was serious misconduct which warranted an undesirable discharge.
3. The applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. As such, he is not entitled to an honorable discharge. His military record was not satisfactory. As such, he was not entitled to an honorable or a general discharge.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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