IN THE CASE OF:	  

		BOARD DATE:	      15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007985 


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 undesirable discharge to a fully honorable discharge.

2.  The applicant states that he served his country to the best of his ability and he is pleading for clemency. 

3.  The applicant did not provide any additional documentary evidence 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 records show he enlisted in the Regular Army for a period of 2 years on 30 November 1973.  He completed basic combat training at Fort Leonard Wood, MO and was he was assigned to Fort Belvoir, VA, for completion of advanced individual training (AIT) for military occupational specialty (MOS) 52B (Power Generator Repairer).  However, there is no evidence in the applicant’s records that shows he completed AIT and/or was awarded this MOS.
The applicant’s records also show he was later reassigned to Fort Leonard Wood, MO for completion of MOS 12B (Pioneer).  There is also no evidence that he was awarded this MOS.

3.  On 2 April 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on or about 
2 April 1974.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $75.00 pay for 1 month, and 14 days of extra duty.

4.  On 29 April 1974, the applicant departed his training unit in an absent without leave (AWOL) status and he returned to his unit on 6 May 1974.  On 7 May 1974, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for this period of AWOL.  His punishment consisted of a reduction to PVT/E-1, a forfeiture of $76.00 pay for 1 month, and 14 days of extra duty.

5.  On 10 May 1974, the applicant again departed his training unit in an AWOL status and he returned to his unit on 31 May 1974.  On 11 June 1974, the applicant accepted NJP for this period of AWOL.  His punishment consisted of a forfeiture of $163.00 pay for 2 months, 30 days of extra duty, and 30 days of restriction.

6.  Item 44 (Time Lost) on the applicant’s DA Form 20 (Enlisted Qualification Record) shows, in addition to the above periods of AWOL, the applicant had
30 days of lost time from 25 June through 24 July 1974 for imprisonment. 

7.  The facts and circumstances concerning the applicant’s separation process are not available for review with this case.  However, his records contain a properly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 27 August 1974 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with an undesirable discharge while assigned in a trainee status.  He had completed a total of 7 months of creditable active service and he had 58 days of lost time.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. 

10.  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.

11.  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 undesirable discharge should be upgraded to a fully honorable discharge.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 27 August 1974 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 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, the applicant’s discharge accurately reflects his overall record of service.

4.  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 any 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)                                         AR20090007985



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ABCMR Record of Proceedings (cont)                                         AR20090007985



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