IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090011442 


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 to an honorable discharge.

2.  The applicant essentially states that he does not believe that his discharge was unjust, but as it has been approximately 30 years since his discharge, he believes it is time to see if he can get it upgraded.

3.  The applicant provides no additional evidence in support of this 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 military records show that he enlisted in the Wisconsin Army National Guard (WIARNG) on 13 September 1974.  He was ordered to active duty for training (ADT), completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 44C (Welder).  He was released from ADT on 14 February 1975.  He was discharged from the WIARNG on 18 January 1977 after failing to satisfactorily participate in required unit training and he was ordered to active duty with a reporting date of 19 January 1977; however, the applicant never reported for active duty.
He was placed in an absent without leave (AWOL) status on that date and he was later dropped from the rolls (DFR) of the Army and classified a deserter.  He remained in this status until he was apprehended by civil authorities on 5 May 1977 and returned to military control.  He was then reassigned to the U.S. Army Personnel Control Facility at Fort Carson, CO.

3.  On 17 May 1977, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about 
19 January 1977, and remaining so absent until on or about 5 May 1977; an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

4.  On 18 May 1977, a Judge Advocate General's Corps lawyer informed the applicant that he was pending trial by court-martial and, that if convicted, the Manual for Courts-Martial authorized as a part of the punishment for his offense the issuance of a bad conduct or dishonorable discharge.  This lawyer was also informed that the applicant desired to submit a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  This lawyer also indicated that before she permitted the applicant to make his request, she wanted to explain to the applicant the provisions of chapter 10, advise him as to the probable nature and effects of a discharge under this regulation, and advise him of certain rights that he had and could exercise.

5.  This lawyer wanted to make it clear to the applicant that the Army was not trying to separate him at that point, and that if he did request discharge for the good of the service, it must be his voluntary choice, and that no person could make, force, or coerce him to ask for this discharge.  This lawyer also warned the applicant against widespread rumors that an under other than honorable conditions discharge could easily be changed to an honorable discharge after his release, or that after a certain time it would automatically become honorable, and that these rumors were totally false.  This lawyer also advised the applicant about the Army Discharge Review Board (ADRB) and the ABCMR, and cautioned him that in 1969, the ABCMR only changed 2.8 percent of the discharges it reviewed, and that statistics were furnished to the applicant so that he would know that if, as was likely, he was issued an under other than honorable conditions discharge, in all likelihood, that discharge would remain with him for the rest of his life.

6.  On 19 May 1977, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will, and had not been subjected to coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was guilty of the charge against him which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

7.  In his request for discharge, the applicant also acknowledged that he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant elected to submit a statement in his own behalf and he essentially indicated that he knew of his responsibility to attend all drills in a satisfactory manner and that he failed to attend more than five drills without excuse within a 1-year period prior to his activation.  He also stated that he received his activation orders but failed to comply, and that he had no desire to return to active duty at that time.

8.  On 26 May 1977, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant be reduced to the lowest enlisted grade effective that date.  On 8 June 1977, the applicant was discharged accordingly.  

9.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

10.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 under other than honorable conditions was not unjust; however, it has been approximately 30 years since his discharge and he believed it was time to see if he could get his discharge upgraded.

2.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's record of indiscipline shows 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, he is not entitled to an honorable or a general 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)                                         AR20090011442



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ABCMR Record of Proceedings (cont)                                         AR20090011442



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