BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008769 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states that he is requesting an upgrade of his discharge because he values what it means to be a Soldier and veteran.  He regrets his decision resulting in his discharge and wants to rectify it at any cost.  He has been an outstanding citizen of his community for over 30 years and has avoided all trouble.  

3.  The applicant provides no additional documentation 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.  On 6 February 1968, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 70A (Clerk).

3.  On 27 February 1969, the applicant was convicted by a summary court-martial of being AWOL (42 days).  His sentence consisted of reduction to pay grade E-1, a forfeiture of $37.00 pay for 1 month, and 60 days of restriction.

4.  On 23 September 1969, the applicant was convicted by a special court-martial of being AWOL (107 days).  His sentence consisted of confinement at hard labor for 3 months.  

5.  On 22 September 1970, charges were preferred against the applicant under the provisions of the Uniform Code of Military Justice (UCMJ) for violation of Article 86, being AWOL from on or about 4 April to 21 September 1970.

6.  On 14 October 1970, 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 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.  The applicant also acknowledged he understood if he receive an under other than honorable conditions (UOTHC) discharge, he would be deprived of many or all of his benefits as a veteran.  He also acknowledged he understood he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.  

7.  On 23 November 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 30 November 1970, the applicant was discharged accordingly with a characterization of service of UOTHC.  He had completed a total of 1 year, 6 months, and 29 days of creditable active military service and accrued 451 days of time lost due to being AWOL and in confinement.

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

9.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge UOTHC is normally considered appropriate.  However, at the time an undesirable discharge was considered appropriate.

10.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

11.  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.

12.  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 requests an upgrade of his discharge.  He regrets his decision and claims he has been a good citizen.

2.  The evidence of record confirms the applicant, after having had two prior AWOL offenses, was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.
5.  Based on his record of indiscipline which includes 451 days of lost time the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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.

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

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)                                         AR20090008769



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ABCMR Record of Proceedings (cont)                                         AR20090008769



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