BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090011873 


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, upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that he served in the Army National Guard and on active duty for almost 5 years.  He believes the lost time and the discharge he received are not correct.  He further states that he has been a very productive member of society and this discharge is now causing him problems.

3.  The applicant provides no additional documentation 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.  On 20 June 1973, the applicant enlisted in the New Mexico Army National Guard (NMARNG).  He was subsequently ordered to initial active duty for training (IADT) during the period 27 July to 28 November 1973.  He completed his initial training and he was awarded military occupational specialty (MOS) 16F (Light Air Defense Artillery Crewman).

3.  On 28 January 1975, the applicant was discharged from the NMARNG for the purpose of enlisting in the Regular Army (RA).  On 29 January 1975, he enlisted in the RA.  He completed advanced individual training in MOS 11B (Infantryman) and he was assigned for duty as an assistant gunner with the 1st Battalion, 504th Infantry Regiment located at Fort Bragg, NC.

4.  On 5 January 1976, the applicant was advanced to specialist four (SP4), pay grade E-4.

5.  On 6 January 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing two marijuana cigarettes.  The punishment included reduction private first class (PFC), pay grade E-3 (suspended); a forfeiture of $101.00 pay per month for 1 month; and 14 days of extra duty.

6.  On 10 November 1976, the applicant was convicted by special court-martial for failure to repair and possession of marijuana.  His sentence consisted of reduction to private, pay grade E-2; and forfeiture of $100.00 pay per month for 
4 months.

7.  On 5 August 1977, charges were preferred under the UCMJ for violation of Article 86 for being AWOL during the period 18 April 1977 to 27 July 1977.

8.  On 5 August 1977, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an under other than honorable conditions discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  Concurrently, the applicant requested he be placed in a voluntary excess leave status pending final disposition of his request for discharge.  This request was approved and on 5 August 1977, he departed his unit in an excess leave status.

12.  On 16 August 1977, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  On 23 August 1977, the applicant was discharged accordingly.  His DD Form 214 shows he had completed a total of 2 years, 3 months, and 4 days of creditable active military service this period and he had 130 days of time lost.  Item 27 (Remarks) shows he had accrued 111 days of time lost under the provisions of Title 10, U.S. Code, section 972. It also shows he departed on excess leave for 19 days from
5 August 1977 to 23 August 1977.

13.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows that he was either absent without leave (AWOL) or in confinement from 8 October 1976 through 13 October 1976, 14 October 1976 through 18 October 1976, and 18 April 1977 through 26 July 1977, for a total of 111 days of time lost during his period of service.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.

16.   Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

17.  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.

18.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished each individual separated from the Army and established standardized procedures for the preparation and distribution of these documents.  The purpose of a separation document is to provide the individual with documentary evidence of his/her military service.  It is a vital record for interested Government agencies which assist the veteran in obtaining the rights and benefits to which he/she is entitled.  Therefore, it is important that information entered is complete and accurate.  It also established standardized policy for the preparation of the DD Form 214.  It stated, in effect, that the entry for item 21 (Lost Time) is required by other Federal agencies and will include time lost under Title 10, U.S. Code, section 972 and time in an excess leave status for the preceding 2 years only.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that because he served in the Army National Guard and on active duty for almost 5 years and he has been a very productive member of society since his separation, his discharge should be upgraded to general, under honorable conditions.  He also contends that his period of tile lost is incorrect.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's reported record of good service since his discharge is greatly diminished by the NJP and special court-martial that he received; and by the misconduct for which he was discharged.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

5.  Item 21 of the applicant's DD Form 214 shows he had 130 of time lost during his term of service.  Records show he accrued 111 days of time lost due to AWOL or confinement on three separate occasions.  He was also on voluntary excess leave from 5 August 197 to 25 August 1977 for a period of 19 days.  By regulation in effect at the time, the entry for item 21 will include time lost by reason of AWOL, confinement, and excess leave, which in his case, totaled 130 days.  Therefore, the entry in item 21 is correct.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090011873



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ABCMR Record of Proceedings (cont)                                         AR20090011873



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