IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011925 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he desires an upgrade of his discharge in order to qualify for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 military record shows he enlisted in the Regular Army and entered active duty on 3 December 1968.  

3.  On 3 January 1969, while attending basic combat training (BCT) at Fort Ord, California, the applicant departed on his first period of being absent without leave (AWOL).  His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) that he accrued a total of 659 days of time lost during four separate periods of AWOL and three separate periods of confinement between 3 January 1969 and 8 March 1971.  

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 December 1968, for disobeying a lawful order issued by his superior noncommissioned officer (NCO).

5.  A DA Form 20B (Record of Court-Martial Insert Sheet) to his DA Form 20 shows that on 20 January 1969, a summary court martial (SCM) found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 3 through on or about 12 January 1969.  The resultant sentence was a confinement at hard labor for one month and a forfeiture of $68.00 per month for 6 months.  It also shows that on 28 March 1969, a special court-martial (SPCM) found him guilty of violating Articles 86 and 91 of the UCMJ by being AWOL from on or about 17 February through on or about 9 March 1969, and by willfully disobeying a lawful order of his superior NCO on 13 March 1969.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $68.00 per month for 6 months.

6.  On 17 March 1971, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 95 and 85 of the UCMJ for unlawfully escaping from confinement  on 29 November 1969 and by being AWOL from on or about 29 November 1969 to on or about 9 March 1971.

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge if a request for discharge were approved, and of the rights available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge in lieu of trial by 
court-martial.  In a personal statement he submitted with his discharge request, the applicant expressed his desire to be discharged and claimed he was mistreated since he entered the Army.  He further stated that if he was not allowed to be discharged from the Army he would continue to go AWOL.


8.  In his request for discharge, the applicant acknowledged that he was making the request of his own free will and that he had no desire to perform further military service.  He also acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge, and that he understood that by requesting discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

9.  The separation authority approved the applicant’s request for discharge and directed that he receive a UD and that he be reduced to the lowest enlisted grade.  On 28 May 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms that he completed a total of 
7 months and 9 days of creditable active military service and had accrued 
659 days of time lost due to AWOL and confinement.  

10.  On 13 October 1976, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s record of service and all other evidence, determined that his discharge was proper and equitable.  As a result, the applicant’s request for an upgrade of his discharge was denied.  

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 issue a general, under honorable conditions discharge (GD) or HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate.  At the time of the applicant's discharge, the issuance of a UD was authorized.

12.  Army Regulation 635-200, paragraph 3-7a, 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.  Paragraph 3-7b provides that a GD 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 his UD should be upgraded to an HD in order that he might receive VA benefits has been carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  

3.  The applicant’s discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  The UD he received was normal and appropriate under the regulatory guidance, and accurately reflects his overall undistinguished record of service.  His record of service clearly did not support the issue of an HD or GD by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this late date.

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)                                         AR20090011925



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ABCMR Record of Proceedings (cont)                                         AR20090011925



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