BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090010662 


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

2.  The applicant states, in effect, that he feels the young man who entered the Army no longer exists.  He also states that he matured late in life, but he is a grown man now and is fully aware of the consequences of his actions.  The applicant adds that he still regrets his behavior in the military and believes that had he foreseen the consequences of his immaturity, he would not have been absent without leave (AWOL).  He states that some understanding of the consequences was what motivated him to surrender and return to military control; unfortunately, it was too late.  The applicant now realizes that electing to accept an undesirable discharge in lieu of confinement in the stockade was a mistake.  He concludes that his childish mentality caused him to be afraid to face the consequences of his actions and opt for the easy way out.

3.  The applicant provides no 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 enlisted in the Regular Army on 6 December 1972.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  The highest rank the applicant attained while serving on active duty was private first class/pay grade E-3.  However, at the time of discharge the applicant held the rank of private/pay grade E-1.

3.  A review of the applicant's record revealed discrepancies in his year of birth.  The DD Form 4 (Enlistment Contract - Armed Forces of the United States), Standard Form 88 (Report of Medical Examination), a DD Form 398 (Statement of Personal History, a DD Form 369 (Police Record Check), and a DA Form 20 (Enlisted Qualification Record) initiated at the time of the applicant's enlistment all show that he was born on 14 August 1952, which would indicate that he enlisted at the age of 20 years, 3 months, and 23 days.  However, a DA Form 428 (Application for Identification Card), another Standard Form 88, a DA Form 2962 (Security Termination Statement and Debriefing Certificate), and his DD Form 214 (Report of Separation from Active Duty) all show that he was born on 14 August 1951, which would indicate that he enlisted at the age of 21 years, 3 months, and 23 days.

4.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions during the period 7 October 1974 through 21 October 1975 for offenses which include dereliction in the performance of his duties, possession of marijuana (twice), wrongful appropriation of a government vehicle, and wrongful disposal of three mortar rounds.

5.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 26 January 1976, shows the applicant departed his unit in an AWOL status on 3 November 1975 and he was dropped from the rolls of his unit on 22 November 1975.  This form also shows the applicant surrendered to military authorities and returned to military control on 26 January 1976.

6.  A DD Form 458 (Charge Sheet), dated 28 January 1976, shows the applicant was charged with one specification of violating Article 86 of the UCMJ for being AWOL from 3 November 1975 to 26 January 1976.  The applicant's chain of command recommended that he be tried by a special court-martial empowered to adjudge a bad conduct discharge.

7.  On 18 February 1976, 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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  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 of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 27 February 1976, the separation authority approved the applicant's request and directed that he be reduced to the lowest enlisted grade, discharged, and furnished an Undesirable Discharge Certificate.

9.  Headquarters, III Corps and Fort Hood, Special Orders Number 56, dated 19 March 1976, discharged the applicant effective 22 March 1976.

10.  The DD Form 214 issued to the applicant at the time confirms he was separated under the provisions of chapter 10 of Army Regulation 635-200 with an undesirable discharge under other than honorable conditions.  He had completed a total of 3 years and 24 days of creditable active military service and he had 84 days of lost time due to being AWOL.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.

12.  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.

13.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Although the applicant's record contains discrepancies pertaining to his year of birth, it is presumed that he was more than 20 years of age at the time of his enlistment and 22 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on five occasions for various offenses.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or general characterization of service.

7.  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)                                         AR20090010662



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ABCMR Record of Proceedings (cont)                                         AR20090010662



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