IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090010170 


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, upgrade of his undesirable discharge (UD) to an honorable discharge (HD).  

2.  The applicant states, in effect, that he is in need of veterans benefits.  He claims he continues to suffer from injuries he sustained on active duty while moving lockers 

3.  The applicant provides a self-authored statement 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 (RA) and he entered active duty on 10 August 1972.  He was trained in and awarded military occupational specialty (MOS) 36C (Lineman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to specialist four (SP4)/E-4 on 1 March 1974 and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PV2)/E-2 on 8 July 1975, advanced back to private first class (PFC)/E-3 on 25 June 1975, again reduced to PV2 on 24 February 1976, and finally reduced to private (PV1)/E-1 on 29 July 1976.

4.  The applicant's DA Form 2-1 shows he completed an overseas tour of duty in Korea on 4 September 1975 and that during his active duty tenure he earned the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's record documents no acts of valor or service warranting special recognition.  His record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) on the following two separate occasions for the offenses indicated:  on 8 July 1975 for possession of marijuana; and on 27 February 1976 for leaving his appointed place of duty without authority.

6.  A Standard Form (SF) 88 (Report of Medical History) and SF 89 (Report of Medical History), dated 12 March 1976, which were completed to document the applicant's separation physical examination, show the applicant suffered from no disabling medical conditions that would have warranted his separation processing through medical channels.  The clinical evaluation of the SF 88 shows the applicant was evaluated as normal in upper extremities and no physical defects in his shoulders or elsewhere was documented on the form.  The SF 89 contains a note from the applicant that indicates he was suffering from no problems at the time except insomnia.  The applicant was medically cleared for separation/retention by the examining physician.

7.  On 11 May 1976, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 121 of the Uniform Code of Military Justice (UCMJ) by stealing a camera valued at $329.96, the property of the U.S. Government, on or about 28 March 1976; and by stealing another camera valued at $130.00 and a camera lens valued at $127.20, the property of [another Soldier] on or about 28 March 1976.


8.  On 21 July 1976, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and the possible effects of a UD.  The applicant, subsequent to this legal counsel, voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

9.  In his request for discharge, the applicant acknowledged that by requesting discharge, he was acknowledging that he was guilty of the offense charged, or of a lesser offense included therein, which also authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that under no circumstances did he want further rehabilitation because he had no desire to perform further military service.  He also acknowledged that he understood he could receive a UD and as a result 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, 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.

10.  On 29 July 1976, the separation authority approved the applicant’s discharge request and directed that he be issued a UD.  On 9 August 1976, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he held the rank/grade of PV1/E-1 and he had completed a total of 4 years of creditable active military service at the time of his discharge.

11.  On 27 April 1981, the Army Discharge Review Board (ADRB), after carefully considering the applicant's military record and all available evidence, determined the applicant's discharge was proper and equitable and it voted to deny the applicant's request for an upgrade of his discharge.

12.  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.

13.  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.

14.  Paragraph 3-7b of the same regulation 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 based on his overall record of service and because he is in need of veterans benefits for an injury he sustained while serving on active duty was carefully considered.  However, there is insufficient evidence to support this claim.

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 an UD.  His record documents no acts of valor or service warranting special recognition.  Given his extensive disciplinary history, it is clear that his 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.  Further, the applicant's record contains an SF 88 and SF 89 that were prepared to document his separation physical examination.  These documents 
confirm the applicant was suffering from no disabling physical or mental condition that warranted his separation processing through medical channels.  In addition, the clinical evaluation documents no medical condition and the applicant admitted he suffered from no medical problems in the medical history form he completed.  As a result, the injury referred to by the applicant is not a sufficiently mitigating factor that would support granting the requested relief. 

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)                                         AR20090010170



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010170



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1