BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090008473


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 “…the court martial was unjust because I was the only one punish [sic] for the altercation that took place.”  He feels he was a good Soldier and should have been given a second chance.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army for 2 years on 26 February 1971.  He was trained in military occupational specialty (MOS) 94B (Cook) and sent to Fort Sill, OK for permanent duty.

3.  On 27 August 1971, the applicant was adjudged guilty by a special court-martial of being absent without leave (AWOL) from 5-8 July 1971 and of assault on an enlisted Soldier on 26 July 1971.  His sentence was a forfeiture of $50 pay for 1 month, and 60 days restriction.

4.  On 1 October 1971, the applicant again went AWOL.  He remained AWOL until 19 November 1971.  Court-martial charges were preferred against him on 23 November 1971.  On 29 November 1971, after consulting with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  On 30 November 1971, his request was approved under the provisions of chapter 10, Army Regulation 635-200.  The approving authority directed that he be issued an undesirable discharge.

5.  On 3 December 1971, the applicant was issued an undesirable discharge.  His DD Form 214 shows he served 7 months and 15 days of active service and he had 53 days of lost time.

6.  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.  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.

7.  Army Regulation 635-200 provides guidance on the characterization of service in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 11 May 1982, the ADRB denied his request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant received a special court-martial conviction for being AWOL and for assault against another Soldier.  When he went AWOL a second time, charges were preferred against him.  He consulted with legal counsel and requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

3.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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)                                         AR20090008473



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ABCMR Record of Proceedings (cont)                                         AR20090008473



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