BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090008789 


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 (UD) be upgraded to a general, under honorable conditions discharge (GD).   

2.  The applicant states, in effect, he was young, married and under a great deal of stress.  His wife threatened to divorce him and his father was hospitalized and later died.  He claims he entered the Army to serve his country and has not requested an upgrade of his discharge until now because he believed he had to pay for his actions.  He indicates he has been a productive member of society since his discharge.   

3.  The applicant provides no 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 record shows that he enlisted in the Regular Army and entered active duty on 16 February 1969.  His record documents no acts of valor or significant achievement and shows he never advanced beyond his entry rank of private/E-1 (PV1).  His record further shows he accrued 344 days of time lost due to being absent without leave (AWOL) during three separate periods between 3 March 1969 and 10 March 1970.  

3.  On 19 August 1969, a special court-martial (SPCM) found the applicant guilty of two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 3 through 7 March 1969 and from 23 March through 7 August 1969.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $30.00 per month for 6 months.

4.  On 22 August 1969, the applicant departed AWOL from the Special Processing Detachment, Fort Meade, Maryland.  He remained away for 201 days until being returned to military control on 10 March 1970. 

5.  On 17 March 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 22 August 1969 through on or about 10 March 1970.  

6.  On 19 March 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 a UD.  Subsequent to this legal counsel, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  In his request for discharge, the applicant acknowledged that he could be discharged with a UD.  He also acknowledged in his discharge request that he had been advised and understood the possible effects of a UD and that as a result of receiving such a discharge he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He finally acknowledged he understood that he could face substantial prejudice in civilian life as a result of receiving a UD.

7.  On 27 March 1970, the separation authority approved the applicant’s discharge request and directed that he be issued a UD.  On 27 March 1970, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed a total of 1 month and 28 days of creditable active military service and accrued 344 days of time lost due to being AWOL.  
8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations. 

9.  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.  It further indicates that an under other than honorable conditions discharge normally is appropriate for a Soldier who is discharged under these provisions.  However, at the time of the applicant's discharge, the regulation provided for the issuance of a UD.  The separation authority could direct the issuance of a GD if warranted by the member's overall record of service during the enlistment.  An honorable discharge (HD) was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an 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.  Paragraph 3-7b provides that a 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 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 contention that his discharge should be upgraded because he was young, married, and facing family problems and under a lot of stress at the time he served was carefully considered.  However, these factors while unfortunate are not sufficiently mitigating and alone do not support an upgrade of his discharge at this late date. 

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
3.  The record further shows the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in him receiving a punitive discharge only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving a UD.  His record documents no acts of valor or significant achievement.  Given his extensive disciplinary history, it is clear that his short and undistinguished record of service did not support the issuance of a GD or HD by the separation authority at the time of his discharge and it is equally clear it does not support an upgrade now.

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 this 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)                                         AR20090008789



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ABCMR Record of Proceedings (cont)                                         AR20090008789


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