IN THE CASE OF:	  

		BOARD DATE:	        10 September 2009

		DOCKET NUMBER:  AR20090007624 


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 a general discharge.

2.  The applicant states he wishes to have his discharge characterization reviewed and possibly upgraded to general and the recovery of possible pay lost due to him.

3.  The applicant provides no additional documentary evidence in support of this 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 military records show he enlisted in the Regular Army on 15 January 1974.  He completed basic training only and was not awarded a military occupational specialty.

3.  The applicant's records do not show any significant acts of achievement or valor during his military service.  The highest pay grade attained was private/E-1.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions during the period 26 February 1974 to 26 March 1974 for being absent without leave (AWOL) from his appointed place of duty during the period 24-25 February 1974 and during the period 18-19 March 1974.

5.  On 11 July 1974, the applicant was charged with one specification of being AWOL during the period 1 April 1974 to 2 July 1974.

6.  An FH Form 943 (AWOL Returnee Information Sheet), dated 10 July 1974, shows the applicant was tried and convicted in Ennis County, Texas, for attempted rape, sentenced to 60 days in jail, and fined $100.00.

7.  On 16 July 1974, the applicant voluntarily and in writing requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant stated that he understood he could request this discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

8.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that were attached to his request.  He acknowledged that by submitting his request he was admitting guilt to the charge or of (a) lesser included offense(s) contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel and was fully advised of the nature of his rights under the UCMJ.

9.  He further acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he had been advised of and that he understood the possible effects of an undesirable discharge, and that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (currently known as the Department of Veterans Affairs), and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He submitted a statement in his own behalf indicating that he went home to be with his sick aunt and while there he learned that the police were looking for him for attempted rape, so he stayed home.  He continued by stating that his aunt went to the hospital with appendicitis, which was one reason he went AWOL.  The other reason being that he was in jail for 72 days for attempted rape.

10.  On 18 July 1974, the applicant's unit commander recommended approval of his request for discharge and recommended he be issued an Undesirable Discharge Certificate.  His intermediate commander also recommended approval on the same date.

11.  On 23 July 1974, the Staff Judge Advocate recommended approval of the applicant's request for discharge.

12.  On 23 July 1974, the separation authority approved the applicant's request for discharge under provisions of chapter 10, Army Regulation 635-200, for the good of the service and directed the applicant be issued an Undesirable Discharge Certificate.

13.  On 2 August 1974, the applicant was discharged with an under other than honorable conditions characterization of service.  He was furnished an Undesirable Discharge Certificate.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant shows he completed a total of 3 months and 17 days of active military service with 93 days of lost time.

14.  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.  At the time of the applicant's separation, an undesirable discharge was appropriate.

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.

16.  On 13 February 1987, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge to a general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he accepted NJP on two occasions for being AWOL and then he was charged with being AWOL for approximately 3 months following a civilian conviction and confinement in jail.  The applicant's records show that he had a total of 93 days lost due to being AWOL.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant admitted guilt to the charge which authorized the imposition of a bad conduct or dishonorable discharge and requested discharge in lieu of court-martial.

3.  Based on the applicant's record of indiscipline, his 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, he is not entitled to a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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.



      _______ _ 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)                                         AR20090007624



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ABCMR Record of Proceedings (cont)                                         AR20090007624



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