IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090010665 


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 (UD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, he is disabled and in need of medical treatment.

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's record shows that after serving in the Army National Guard from 11 March 1972 through 11 January 1973, he enlisted in the Regular Army and entered active duty on 12 January 1973.
3.  The applicant's record shows that he was trained in, awarded, and served in military occupational specialties (MOS) 12A (Combat Engineer) and 12C (Bridge Specialist).  It also shows he was advanced to the rank of private first class on 14 February 1973 and that this is the highest rank he attained while serving on active duty.  His record shows he earned the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar and documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  4 October 1973, for being absent without leave (AWOL) from 17 through 20 September 1973 and 25 through 28 September 1973; 7 December 1973, for being AWOL from 4 through 6 December 1973; 12 February 1974, for failure to repair; and 25 October 1974, for being AWOL from 30 September 1974 through 20 October 1974.  It also shows that on 12 March 1974, a special court-martial found the applicant guilty of violating Articles 86 and 134 of the UCMJ as follows: 
Article 86, by being AWOL from 19 through 25 February 1974 and from 28 February through 5 March 1974, and Article 134, by breaking restriction on 25 February 1974.  The resultant sentence was a reduction to private (PV1)/E-1, confinement at hard labor for 45 days, and a forfeiture of $100.00 per month for 2 months.

5.  On 22 April 1975, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 6 December 1974 through on or about 2 April 1975.

6.  On 21 May 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, 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).

7.  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.

8.  The applicant 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 laws.  He finally acknowledged he understood that he could face substantial prejudice in civilian life as a result of receiving a UD.

9.  On 10 June 1975, the separation authority approved the applicant's discharge request and directed that he be issued a UD.  On 19 June 1975, 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 2 years, 5 months, and 7 days of creditable active military service and that he accrued 165 days of time lost due to AWOL at the time of his discharge.

10.  On 10 July 1981, the Army Discharge Review Board, 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.

11.  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 to an individual who was discharged for the good of the service.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge (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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b 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 HD.  A GD 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 because he is now disabled and in need of medical treatment was carefully considered.  However, although his current condition is unfortunate, this factor alone is not sufficiently mitigating to support granting the requested relief.

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 applicant's record further shows he voluntarily requested discharge in order to avoid a court-martial that could have resulted in receiving a punitive discharge only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving a UD.

4.  The applicant's record documents no acts of valor or achievement.  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.

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)                                         AR20090010665



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ABCMR Record of Proceedings (cont)                                         AR20090010665



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