IN THE CASE OF:	  

		BOARD DATE: 	        12 November 2009 

		DOCKET NUMBER:  AR20090011027 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, that the document he signed, a chapter 10, was a resignation from the service to protect him from prosecution.  

3.  The applicant did not submit any additional documentary evidence in support of his request.  

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 records show he enlisted in the Regular Army (RA) for a period of 2 years on 23 January 1970.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Germany from on or about 15 June 1970 to on or about 28 January 1971.  He was awarded the National Defense Service Medal.  

4.  On 7 December 1970, it was reported that the applicant refused to don a military uniform and report to work.  He was subsequently called into the immediate commander’s office and, in the presence of the unit first sergeant (1SG), the commander informed the applicant of the consequences of his actions.  The applicant stated that he understood the consequences of his decision and reiterated his refusal.  He was then given an order by his commander to don his uniform and report to the 1SG.  He again refused to do so.

5.  On 10 December 1970, court-martial charges were preferred against the applicant for one specification of willfully disobeying a lawful command order from his superior commissioned officer to don the duty uniform (fatigues) and report to the 1SG on or about 7 December 1970. 

6.  On 19 December 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions; the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ); the possible effects of a request for discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, the applicant acknowledged he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge 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 Veteran Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 21 December 1970 and 6 January 1971, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.  

9.  On 14 January 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 28 January 1971.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form also confirms he completed 1 year and 6 days of creditable active service.

10.  On 18 October 1973, the Army Discharge Review Board (ADRB) denied the applicant’s petition 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 an individual who was discharged for the good of the Service. 

12.  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.

13.  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.

2.  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 are voluntary requests 
for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, 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.  The applicant’s narrative reason for discharge is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  Based on the applicant’s record of indiscipline, his 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 either an honorable or a general, under honorable conditions discharge.  

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)                                         AR20090011027



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ABCMR Record of Proceedings (cont)                                         AR20090011027



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