IN THE CASE OF:	  

		BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090008526 


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, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states no other contentions. 

3.  The applicant did not provide any supporting documents with 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 was inducted into the Army of the U.S. on 17 October 1966.  He completed basic combat training.  He did not complete advanced individual training. 

3.  A review of the applicant's official military personnel record shows that he was convicted by three separate courts-martial.

	a. On 7 February 1967, a summary court-martial held at Fort Knox, KY convicted the applicant of being absent without leave (AWOL) from 4 January 1967 to 12 January 1967.  

	b. On 25 January 1968, a special court-martial held at Fort Meade, MD convicted the applicant of being AWOL from 9 March 1967 to 4 December 1967.  

	c. On 24 September 1968, a special court-martial held at Fort Meade, MD convicted the applicant of being AWOL from 15 February 1968 to 28 August 1968.  

4.  The applicant was found to be medically qualified for retention in the U.S. Army on 1 July 1969.

5.  On 2 July 1969, court-martial charges were preferred against the applicant for being AWOL from on or about 27 January 1969 to on or about 25 June 1969.

6.  On 27 June 1969, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser-included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the of Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 22 July 1969, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed that he receive an undesirable discharge.  


9.  The applicant was discharged accordingly on 22 July 1969.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant at the time confirms he was issued an undesirable discharge and he had completed a total of 3 months and 25 days of creditable active military service.  He also had 621 days of lost time under the provisions of Title 10, U.S. Code 972, and 240 days were lost subsequent to normal expiration term of service.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the administrative 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 in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser-included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200 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.
 
13.  Army Regulation 635-200 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's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The applicant’s voluntary request for separation under the provisions of Army Regulation 
635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

3.  The applicant’s record of service shows 621 days of lost time and 240 days were lost time subsequent to his expiration term of service.  Therefore, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  In view of the applicant's length of lost time, his record of service is not satisfactory.  Therefore, there is no basis to upgrade his discharge to a general or an honorable.

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)                                         AR20090008526



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ABCMR Record of Proceedings (cont)                                         AR20090008526



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