IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013066 


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 his under other than honorable conditions discharge be upgraded to an honorable or a general discharge 

2.  The applicant states that he was 20 years old at the time of his discharge and did not understand the severity of the discharge he received.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 5 December 1973, in support of his request.  

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 was born on 15 December 1951 and enlisted in the Regular Army at the age of 19 for a period of 3 years on 22 March 1971.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 12A (Pioneer).  The highest rank/grade the applicant attained during his military service was specialist four/E-4.

3.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 14 July 1971, for being absent without leave (AWOL) during the period from on or about 6 July 1971 through on or about 13 July 1971.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $40.00 pay per month for 2 months, 30 days of restriction, and 30 days of extra duty; and

	b.  on 1 August 1972, for being AWOL during the period from on or about 7 July 1972 through on or about 11 July 1972.  His punishment consisted of a forfeiture of $50.00 pay, 7 days of extra duty, and 7 days of restriction.

4.  On 27 October 1972, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period from on or about 3 August 1972 to on or about 6 September 1972.  The court sentenced him to confinement for 47 days and a forfeiture of $35.00 pay per month for 3 months.  The sentence was adjudged on 27 October 1972 and approved on 20 November 1972. 

5.  On 14 February 1973, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order from a superior noncommissioned officer on or about 6 February 1973.  His punishment consisted of a forfeiture of $67.00 pay and 14 days of extra duty.

6.  On 3 July 1973, the applicant departed his Fort Hood, TX, unit in an AWOL status and was subsequently dropped from the Army rolls on 1 August 1973.  He returned to military control on 27 September 1973.  

7.  On 28 September 1973, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 3 July 1973 through on or about 27 September 1973.  

8.  On 7 November 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, the applicant acknowledged he understood that by requesting discharge he understood that if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged that he understood that 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 could expect to encounter substantial prejudice in civilian life.. 

10.  On 13 November 1973, the applicant's immediate commander recommended approval of the applicant's discharge and that he be given an undesirable discharge.  He also remarked that the discharge was recommended because of the applicant's long record of unsatisfactory conduct and efficiency, inability to perform normal military duties, and potential for another AWOL.

11.  On 13 November 1973, the applicant’s intermediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.  He further remarked that the applicant had demonstrated his inability to adjust to a military environment and that further judicial action was not warranted.

12.  On 21 November 1973, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an Undesirable Discharge Certificate and that he be reduced the lowest enlisted grade.  On 5 December 1973, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged on 5 December 1973 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with an under other than honorable conditions discharge.   This form further confirms the applicant had completed 2 years and 4 months of creditable active military service and that he had 124 days of lost time.

13.  On 12 August 1974 and 10 June 1980, the Army Discharge Review Board denied the applicant's petitions for an upgrade of his discharge.


14.  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.

15.  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.

16.  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.   

2.  The evidence of record shows that the applicant was 19 years of age at the time he enlisted in the Regular Army and was between 20 and 22 years of age at the time he committed his various AWOLs.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant's records and the applicant did not provide any evidence that shows his extensive history of AWOL was the result of his age.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service and by law and regulation, the applicant was not entitled to a hearing.  

4.  In order to justify correction of a military record, the applicant must show, 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.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090013066



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ABCMR Record of Proceedings (cont)                                         AR20090013066



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