BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090011331 


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 general discharge (GD), under honorable conditions be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, a colonel made a false statement indicating he suffered as a result of fights.  He claims this was not true and that he was attacked by noncommissioned officers (NCOs) on at least two separate occasions because he did not know his job requirements.  He claims he never fought anyone and the record reflects a cover-up.  

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 he enlisted in the Regular Army and entered active duty on 5 December 1973.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  His record shows he was advanced to private/E-2 on 5 April 1974, and that this is the highest rank he attained while serving on active duty.  

3.  The applicant's record shows that during his active duty tenure, he earned the National Defense Service Medal, Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars, and Expert Marksmanship Qualification Badge with Mortar Bar.  His record documents no acts of valor or significant achievement.  

4.  On 8 July 1974, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for two specifications of disobeying lawful orders from commissioned officers, two specifications of absenting himself from his unit without authority, and disobeying the lawful order of an NCO.  His punishment for this offense was a forfeiture of $84.00 and 14 days of restriction and extra duty.

5.  A DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for two specifications of violating Article 86 of the UCMJ by failing to go to his appointed place of duty at the time prescribed on or about 17 and 24 July 1974; and for two specifications of violating Article 90 of the UCMJ by disobeying the orders of commissioned officers on or about 24 and 
26 July 1974.  

6.  On 6 August 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and maximum permissible punishment authorized under the UCMJ, of the possible effects of an Undesirable Discharge (UD) if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this counseling, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  

7.  In his discharge request, the applicant acknowledged that he had been advised of the implications attached to the discharge request and that by submitting the request he was admitting guilt to the charge(s) or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  


8.  The applicant also indicated in his discharge request that he understood if his discharge request were accepted, he could receive an UD and that he had been advised of the possible effects of this type of discharge.  He also stated that he understood he could be deprived of many or all Army benefits, that he could be ineligible for or deprived of 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 further acknowledged that he understood he could encounter substantial prejudice in civilian life because of an UD and he elected not to submit statements in his own behalf. 

9.  On 3 September 1974, the separation authority approved the applicant's request for discharge and directed that he receive an UD and that he be reduced to the lowest enlisted grade.  On 14 September 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged in the rank of private/E-1.  It also shows he completed a total of 9 months and 9 days of creditable active military service and received an UD.  

10.  On 11 December 1980, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's record, determined that his discharge was proper; however, it concluded it was inequitable.  The ADRB voted to upgrade the applicant's discharge to a GD, but not to change the reason and authority for separation.  A new DD Form 214 was issued reflecting the ADRB decision.  This document shows his grade was restored to private/E-2, his service was characterized as under honorable conditions, and he was issued a GD.  

11.  Army Regulation 635-200 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.  The separation authority may authorize an HD or GD if warranted by the members overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issue of an UD.

12.  Paragraph 3-7a of the same regulation 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust and resulted from a cover up by his chain of command was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms 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.  In his request for discharge, the applicant admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The ADRB upgrade action confirms the applicant's separation processing was proper and that there were no regulatory violations and he was deprived of no rights in connection with his discharge processing.  However, the ADRB did conclude the discharge was too harsh based on the nature of the charges and voted to upgrade the applicant's UD to a GD based on his overall record of service.  

4.  Notwithstanding the ADRB upgrade action, the record confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  The applicant's misconduct as represented in his record of NJP and in the court-martial charges preferred against him clearly diminished the overall quality of his service below that warranting a fully honorable discharge.  Therefore, it would not be appropriate or serve the interest of justice or equity to further upgrade the applicant's discharge. 

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)                                         AR20090011331



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ABCMR Record of Proceedings (cont)                                         AR20090011331



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