BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090009584 


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 changed to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he was under the impression that he was receiving a medical discharge, so he went home to await this discharge; he was not contacted until he was arrested.  He adds that he made several attempts to contact his company commander, at which time he informed them of his address and gave them other contact information.  He later opted for a chapter 10 discharge to avoid court-martial, not understanding the full implication of his decision at the time. 

3.  The applicant provides no additional documents 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 was inducted into the Army of the United States and entered active duty on 20 October 1970.

3.  On 8 March 1971, the applicant received nonjudicial punishment for being absent without leave (AWOL) from 1 to 8 March 1971.  His imposed punishment was a forfeiture of $34.00 pay per month for one month, 14 days restriction and extra duty, and a reduction to pay grade E-1.

4.  On 20 October 1971, court-martial charges were preferred against the applicant for two specifications of being AWOL from 20 March 1971 to 24 May 1971 and from 1 June 1971 to 19 October 1971.

5.  On 3 November 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an Undesirable Discharge Certificate, and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged that he was making the request by his own free will and had not been subjected to any coercion.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also stated his understanding 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.  The applicant indicated he submitted a statement in his own behalf; however, it was not contained in the available records.

6.  On 19 November 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted grade.

7.  On 22 November 1971, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of service, in lieu of court-martial with an undesirable discharge.  He completed 6 months and 1 day of creditable active military service.

8.  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.

9.  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 changed to a general, under honorable conditions discharge.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His undesirable discharge was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

5.  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)                                         AR20090009584



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ABCMR Record of Proceedings (cont)                                         AR20090009584



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