IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090010149 


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 general.

2.  The applicant states that 34 years have passed since his discharge and humbly asks that his discharge be upgraded so he can continue forward in life.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Report of Separation from Active Duty).

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 1 October 1974, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 6 February 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully and knowingly possessing 1 ounce, more or less, of marijuana.  The punishment included a forfeiture of $50.00 pay per month for 1 month and 7 days restriction and extra duty.

4.  On 13 February 1975, the applicant was assigned for duty at Fort Riley, Kansas.

5.  On 23 May 1975, the applicant accepted NJP for violating a lawful regulation by eating in a civilian restaurant while in duty uniform; and for being absent from his place of duty for less than 1 day.  The punishment included 14 days restriction and extra duty.

6.  On 29 May 1975, the applicant accepted NJP for being disrespectful in language toward a superior noncommissioned officer and for disobeying a lawful order from a superior noncommissioned officer.  The punishment included a forfeiture of $95.00 pay per month for 1 month (suspended), reduction to pay grade E-1 (suspended) and 14 days restriction and extra duty.

7.  From 8 to 11 June 1975, the applicant was in jail for shop lifting.

8.  On 12 June 1975, the commander vacated the suspended portion of NJP imposed on 29 May 1975.

9.  On 31 July 1975, the applicant accepted NJP for failure to go to his appointed place of duty at the prescribed time (two incidents).  The punishment included a forfeiture of $86.00 pay per month for 1 month and 14 days restriction and extra duty.

10.  On 6 August 1975, charges were preferred under the Uniform Code of Military Justice for violation of Article 90 by disobeying a lawful order from a commissioned officer; for violation of Article 91 by disobeying a lawful order from a noncommissioned officer (two specifications); for violation of Article 92 by disobeying a lawful order from a specialist six to report for kitchen police duty.



11.  On 8 August 1975, 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.

12.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, and that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

13.  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 to 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

14.  On 25 August 1975, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 11 September 1975, the applicant was discharged accordingly.  He had completed a total of 10 months and 26 days of creditable active military service and had accrued 15 days of lost time.

15.  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.

16.  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 under other than honorable conditions is normally considered appropriate.

17.  Under the UCMJ, the maximum punishment allowed for violation of Article 90, for willful disobeying a lawful order from a commissioned officer is a punitive discharge and confinement for 5 years.

18.  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.

19.  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 discharge should be upgraded based on the passing of 34 years.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The simple passage of time is not justification for an upgrade of an individual's discharge.

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 the aforementioned requirement.

5.  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)                                         AR20090010149





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ABCMR Record of Proceedings (cont)                                         AR20090010149



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