BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090011888 


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, in effect, that during his court-martial he was told he would be discharged with a general, under honorable conditions discharge.  He further states that when records personnel prepared his DD Form 214 (Report of Separation from Active Duty) they incorrectly entered his character of service.

3.  The applicant provides a copy of his DD Form 214 and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United Sates) 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 (RA) on
11 September 1968.  His record shows that he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in Item 41 (Awards and Decorations) that he earned the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records document no acts of valor or significant achievement.

5.  On 11 February 1969, the applicant accepted non-judicial punishment (NJP) for being absent without leave (AWOL) for the period 5 January 1969 to
14 January 1969.  His punishment for this offense consisted of a forfeiture of $23.00 per month for one month.

6.  Headquarters, Troop Command, USAG [U.S. Army Garrison], Fort Carson, CO, Special Court-Martial Order Number 1410, dated 28 July 1969, shows the applicant was found guilty of being AWOL during the period 30 April 1969 to 25 June 1969.  His sentence for this offense consisted of confinement at hard labor for 2 months and forfeiture of $85.00 per month for two months.

7.  Headquarters, Troop Command, USAG, Fort Carson, Special Court-Martial Order Number 427, dated 26 March 1970, shows the applicant was found guilty of being AWOL during the period 10 August 1969 to 6 March 1970.  His sentence for this offense consisted of confinement to hard labor for 6 months.

8.  The applicant’s records contain a DD Form 458 (Charge Sheet), dated 26 August 1970, which indicates he was charged for being AWOL during the period 8 July 1970 to 20 August 1970.

9.  On 31 August 1970, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable 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 chapter 10, Army Regulation
635-200 (Personnel Separations - Enlisted Personnel).

10.  In his request for discharge, he 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life.

11.  On 20 October 1970, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 28 October 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge confirms he completed a total 10 months and 25 days of creditable active military service with 371 days of lost time.

12.  On 28 July 1977, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant's discharge was proper and equitable and denied his appeal.

13.  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.

14.  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's contention that he was told during his court-martial that he would receive a general under honorable conditions discharge and that records personnel incorrectly annotated his DD Form 214 was carefully considered and found to be without merit.

2.  Although the sincerity of the applicant's contention is not in question, the evidence of record shows that the separation approval authority directed that he receive an undesirable discharge.

2.  Evidence shows the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant's administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  Based on his record of indiscipline which includes 371 days of lost time, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Lacking evidence to the contrary, there is an insufficient evidentiary basis to grant the applicant's requested relief.  Therefore, the applicant is not entitled to a general under honorable conditions 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)                                         AR20090011888



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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