IN THE CASE OF:	

		BOARD DATE:	3 September 2009  

		DOCKET NUMBER:  AR20090007399 


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 general discharge be upgraded to fully honorable and affirmed.  

2.  The applicant states, in effect, that he desires his general discharge to be upgraded to a fully honorable discharge and the removal of the bar to Department of Veterans Affairs (VA) benefits.  He goes on to state that he was sexually assaulted in the military and no action was taken against his assailants; therefore, he became defensive and could no longer cope with military life.  He also states that he is unable to apply for veterans benefits due to a bar to benefits in his records.

3.  The applicant provides a copy of a letter addressed to the VA disagreeing with the decision to bar him from benefits, a copy of a Certificate of Graduation from a VA Domiciliary Care Program, and a copy of his DD Form 214 (Report of Separation from Active Duty).

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 was born in Tomahawk, North Carolina on 9 February 1944 and enlisted in the Regular Army in Newark, New Jersey on 23 April 1970, for a period of 3 years, under the Airborne Training Option.  He was transferred to Fort Dix, New Jersey to undergo his training.

3.  On 17 June 1970, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 14 June to 16 June 1970.  His punishment consisted of a forfeiture of pay, extra duty and restriction for 12 days.

4.  On 27 June 1970, NJP was imposed against him for being AWOL from 25 June to 27 June 1970.  His punishment consisted of a forfeiture of pay.

5.  The applicant remained at Fort Dix to undergo his advanced individual training (AIT) and it appears that he did not successfully complete AIT and he was placed in on-the-job-training (OJT) as a duty Soldier and then as a physical activities specialist at Fort Dix.  He was never awarded a military occupational specialty (MOS).

6.  On 11 February 1971, he went AWOL and remained AWOL in a desertion status until he was returned to military control at Fort Bragg, North Carolina on 
10 August 1971.  He was also AWOL from 15 October to 26 October 1971.

7.  On 7 January 1972, he was convicted by a special court-martial of being AWOL from 11 February to 10 August 1971 and from 15 October to 26 October 1971.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of pay and reduction to the pay grade of E-1.  However, on 18 January 1972, the convening authority suspended that portion of the sentence pertaining to confinement at hard labor for 4 months, for a period of 4 months, unless sooner vacated.

8.  The applicant again went AWOL on 17 March 1972 and remained absent in a desertion status until he was returned to military control at Fort Dix on 2 October 1972 and charges were preferred against him.  At the time of his return he indicated that he went AWOL because his mother was sick and that he wanted to stay in the Army.


9.  However, on 5 October 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

10.  The appropriate authority approved his request and directed that he be furnished an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions on 7 November 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 4 months and 26 days of total active service and had 414 days of lost time due to being AWOL.  

12.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge be upgraded to either honorable or general in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

13.  On 25 May 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his discharge to honorable under the Department of Defense (DOD) Discharge Review Program (Special) (DOD-SDRP) and voted to upgrade the applicant's discharge to a general discharge based on secondary criteria of age, general aptitude, education level and length of service.

14.  The applicant again applied to the ADRB for an upgrade of his discharge to fully honorable and requested a personal appearance before that board.  The applicant was granted a personal appearance before that board on 19 April 1979 and then rescheduled at his request to attend on 10 May 1979 in the Pentagon.  However, he failed to appear for the 10 May 1979 hearing.  The ADRB finalized his case based on the evidence available and determined that his discharge did not warrant further upgrading and that the ADRB could not affirm his general discharge upgraded under the DOD-SDRP under review standards required by Public Law 95-126.  The applicant was residing in Oxon Hill, Maryland at the time.

15.  Public Law 95-126 was enacted in 1978.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

16.  Army Regulation 635-200 (Personnel Separations), in effect at the time, 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.  

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.
2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

4.  The applicant's entire record of service was considered.  This service, which included 414 days of lost time, NJP, and conviction by SPCM, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no evidence to show he raised the contentions he now raises at either his court-martial or with his request for discharge.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Therefore, the applicant is not entitled to an honorable discharge or to have his discharge affirmed by this Board.

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)                                         AR20090007399



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ABCMR Record of Proceedings (cont)                                         AR20090007399



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