BOARD DATE: 17 November 2009
DOCKET NUMBER: AR20090010307
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 undesirable discharge be upgraded to a general discharge.
2. The applicant states that while he was on pass, he was arrested by civilian authorities for a crime he did not commit. When he was found not guilty of the offense, he was released by the civilian authorities and returned to his unit. However, when he returned to his unit he was discharged without being advised of his rights and without legal representation. He believed he had no recourse but to accept the discharge.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army on 19 September 1969, was awarded the military occupational specialty of cook, and was promoted to pay grade E-2.
3. On 19 February 1970 and 10 March 1970 the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for two instances of failure to go at the time prescribed to his appointed place of duty.
4. On 19 August 1970, court-martial charges were preferred against the applicant for being absent without leave from 2 April 1970 to 4 August 1970.
5. On 20 August 1970, the applicant requested discharge in lieu of trial by court-martial for the good of the service. In that request he stated, "Prior to completing this form, I have been afforded the opportunity to consult with appointed counsel, or military counsel of my own choice if he is reasonably available, or civilian counsel at my own expense. I have consulted with counsel, whose name appears below, who has fully advised me in this matter on 20 August 1970." The request is signed by a captain of the Judge Advocate Generals Corps.
6. His request was approved by the appropriate authority. Accordingly, on 9 September 1970, the applicant was issued an Undesirable Discharge Certificate.
7. 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 trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
8. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. There is no record of the applicant being arrested by civilian authorities.
2. Contrary to the applicant's contention, he was provided legal counsel and consulted with legal counsel prior to requesting discharge in lieu of trial by court-martial.
3. As such, the applicant has not submitted any matters of mitigation which would warrant upgrading a properly-issued discharge.
4. The applicant accepted NJP twice and was AWOL for 123 days. Such misconduct certainly warranted an undesirable discharge.
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.
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