IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011445 


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, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, he was discharged due to discrimination by his commanding officer.

3.  The applicant provides three third-party statements 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 enlisted in the Regular Army (RA) on 24 August 1973 and upon completion of initial entry training he was awarded military occupational specialty (MOS) 76U (Communications Electronics Repair Parts Specialists).
3.  The complete facts and circumstances surrounding the applicant's discharge are not available for review.  However, there is sufficient evidence available to make a fair and impartial decision in this case.

4.  Headquarters, U.S. Army, Europe and Seventh Army, Special Orders Number 288, dated 15 October 1975, reduced the applicant in rank from private first class (PFC)/E-3 to private (PV1)/E-1.  The authority for the reduction shows the entry "…HQ 3d Inf Div APO 09036 Subj: Request for Discharge for the Good of the Service dtd 25 Sep 95."

5.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 23 October 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with his service characterized as under conditions other than honorable.  It also shows he was issued an Undesirable Discharge Certificate.

6.  The Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge on 15 October 1981.

7.  The applicant provided three third-party statements which attest to his character.

8.  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. 

9.  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.  


10.  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 due to being discriminated against by his commanding officer.  However, there is no evidence in the applicant's records and he did not provide any evidence to substantiate this claim.

2.  The third-party statements provided by the applicant failed to show that his discharge was in error or unjust and should be upgraded.

3.  Although the applicant's separation processing paperwork is not available for review with this case, the available records show he was reduced in rank due to a request for discharge for the good of the service and as a result of misconduct. His DD Form 214 further shows he was separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial with his service characterized as under conditions other than honorable.  As a result, he is not entitled to a general, under honorable conditions or an honorable discharge.

4.  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)                                         AR20090011445



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ABCMR Record of Proceedings (cont)                                         AR20090011445



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