IN THE CASE OF:	  

		BOARD DATE:	        12 November 2009 

		DOCKET NUMBER:  AR20090009797 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that based on a plea agreement, the character of service of his discharge was to have been upgraded to honorable 6 months after his discharge.  He adds that he cannot receive any government benefits because his discharge has not been upgraded in accordance with the plea agreement.

3.  The applicant provides no additional 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 was inducted into the Army of the United States on 23 May 1972 for a period of 2 years.

3.  On 1 June 1972, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 28 May 1972 to 31 May 1972.  His punishment consisted of forfeiture of $60.00 pay for 1 month.

4.  A DD Form 458 (Charge Sheet), dated 18 December 1972, shows a captain assigned to the U.S. Army Personnel Control Facility, Headquarters Command, U.S. Army Training Center, Infantry, and Fort Dix, Fort Dix, New Jersey, preferred charges against the applicant for being AWOL from his unit (i.e., Company A, 2nd Battalion, 3rd Basic Combat Training Brigade) from 1 July 1972 to 14 December 1972.

5.  On 4 January 1973, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions and furnished an undesirable discharge, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.

	a.  The applicant submitted a statement in which he stated, "I wanted a 200 discharge because of the reason that my girlfriend is pregnant and there's nobody to take care of it but me and in October my mother died.  So I want to be home to help my father."

	b.  The immediate commander recommended approval of the applicant's request for discharge.

	c.  The intermediate commander recommended disapproval of the applicant's request based on the pending court-martial charges against the applicant and that he knew of no facts pertaining to the applicant that had not been presented previously.

	d.  On 22 January 1973, the Commanding General, U.S. Army Training Center, Infantry, and Fort Dix, Fort Dix, New Jersey, denied the applicant's request for discharge for the good of the service.

6.  A Fort Dix Form 112 (Request for Information from Civil Authorities), dated 5 September 1973, shows the applicant was arrested on 2 May 1973 for the offenses of petit larceny and criminal trespass.  On 21 May 1973, the applicant was tried and convicted of the offenses in the County Court, Schenectady, New York, and he was sentenced to 1 year in the county jail.

7.  On 10 September 1973, the Assistant Adjutant, Personnel Control Facility, U.S. Army Training Center, Fort Dix, New Jersey, notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), paragraph 33, based on conviction by a civil court.  The applicant was advised of his rights, including having his case presented before a board of officers, appointment of military counsel to represent him in his absence, and representation by civilian counsel at his own expense.  He was also advised that he had the right to waive his rights in writing or by declining to respond within 30 days of the notification, and that if he decided to waive his rights in writing or by declining, the separation authority could decide to discharge him with an undesirable discharge without any further action.

8.  On 17 September 1973, the applicant acknowledged he had been notified of the basis for the proposed separation action.  He waived consideration of his case by a board of officers and, in his absence, appointment of military counsel to represent him.  He also stated that he understood that he may be represented by civilian counsel at his own expense.

	a.  The applicant acknowledged he was in civil confinement at the Schenectady County Jail and that he did not intend to appeal his civil conviction.

	b.  The applicant acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if an undesirable discharge or general discharge under honorable conditions is issued to him.  He also stated that he understood that in the event an undesirable discharge is issued to him, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

	c.  The applicant indicated that statements in his own behalf were submitted and his separation packet contains a handwritten statement from the applicant.  The applicant's statement, dated 11 August 1973, shows the applicant explained to the Provost Marshal, Fort Dix, New Jersey, that while on excess leave pending a decision of his request for discharge for the good of the service, he was arrested for burglary and sentenced to 1 year in the county jail.  This statement also shows that the applicant asked the Provost Marshal to check on his discharge.

9.  On 29 September 1973, the Commander, Company A, Personnel Control Facility, U.S. Army Training Center, Fort Dix, New Jersey, recommended that the applicant be discharged under the provisions of Army Regulation 635-206, section VI, based on conviction by civil court.  The commander also recommended the applicant be furnished an Undesirable Discharge Certificate.

10.  On 23 October 1973, the intermediate commander recommended approval of the applicant's separation and with an Undesirable Discharge Certificate.

11.  On 28 November 1973, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, paragraph 33, and directed the applicant be issued an Undesirable Discharge Certificate.

12.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged from the U.S. Army under other than honorable conditions on 2 January 1974 under the provisions of Army Regulation 635-206 and issued a DD Form 258A (Undesirable Discharge Certificate).  At the time of his discharge the applicant had completed 10 months and 8 days of net active service.  Item 30 (Remarks), in pertinent part, shows the applicant had 276 days of time lost.

13.  The applicant's separation packet contains no evidence of a plea agreement pertaining to upgrade of the applicant's discharge.

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

15.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities or action taken against the Soldier which was tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement n excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

16.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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 upgraded because it was supposed to have been upgraded to an honorable discharge 6 months after his discharge based on a plea agreement; however, it was not and he cannot receive any government benefits.

2.  There is no evidence, and the applicant provides insufficient evidence, to show he secured a plea agreement that his under other than honorable conditions discharge would be changed to an honorable discharge six months after his discharge from the U.S. Army.  There is also no U.S. Army regulation or policy that automatically changes the character of service of a former service member's discharge.  In addition, as a matter of information, the ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for veteran's benefits.

3.  The applicant's separation under the provisions of Army Regulation 635-206, paragraph 33, based on conviction by civil court was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the type of discharge and character of service directed were appropriate.

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.  Therefore, in view of all 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)                                         AR20090009797



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009797



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1