IN THE CASE OF:	

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090013869 


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 that his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states that he received an honorable discharge for his previous period of service.  He needs his second period of service to be upgraded because he is in poor health and unemployed.  An upgrade would qualify him for benefits through the Department of Veterans Affairs.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty), dated 25 February 1971 and 29 May 1975; copies of his discharge orders; a copy of a certificate of proficiency in the Tracked Vehicle Mechanic Course, dated 6 November 1970; an undated Certificate of Proficiency for the Metal Body Repairman Course; a copy of a Letter of Appreciation, dated 25 July 1973; a copy of his Undesirable Discharge Certificate, dated 29 May 1975; and a copy of the Reason and Authority for Separation Memorandum, dated 29 May 1975, 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 records show he was inducted into the Army of the United States and entered active duty on 21 May 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63C (Tracked Vehicle Mechanic).  He was honorably discharged on 25 February 1971 for the purpose of immediate enlistment in the Regular Army (RA).  The DD Form 214 he was issued shows he completed 9 months and 5 days of creditable active service.

3.  The applicant's records also show he enlisted in the RA for a period of 3 years on 26 February 1971.  His records further show he served in Germany from on or about 2 December 1970 to on or about 10 May 1972 and Korea from on or about 12 August 1972 to 5 September 1973.  His awards and decorations include the National Defense Service Medal, the Armed Forces Expeditionary Medal (Korea), and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  On 31 December 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the prescribed time.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $25.00 pay, 14 days of extra duty, and 14 days of restriction.

5.  On 6 July 1972, the applicant pled guilty at a summary court-martial to one specification of being absent without leave (AWOL) during the period from on or about 17 May through 19 June 1972.  The Court sentenced him to 30 days of hard labor without confinement, a forfeiture of $140.00 pay, and a reduction to private (PVT)/E-1.  Additionally, on the same date, the approval authority approved the sentence but suspended that portion of the sentence that pertained to hard labor without confinement for 30 days for a period of 30 days.

6.  The applicant's records reveal acceptance of additional NJP under the provisions of Article 15 of the UCMJ as follows:

	a.  On 17 October 1972, for absenting himself from his appointed place of duty on or about 16 October 1972.  His punishment consisted of a forfeiture of $33.00 pay, 14 days of extra duty, and 14 days of restriction.

	b.  On 21 November 1973, for being AWOL during the period from on or about 12 November through 19 November 1973.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended for 30 days), a forfeiture of $50.00 pay, and 7 days of extra duty.  

	c.  On 13 May 1974, for being AWOL during the period from on or about 19 December 1973 through 8 March 1974.  His punishment consisted of a forfeiture of $200.00 pay for 2 months, a reduction to PFC/E-3, 30 days of extra duty, and 30 days of restriction.

7.  On 27 August 1974, the applicant departed his Fort Hood, TX, unit in an AWOL status.  He was subsequently dropped from the Army rolls on the same date.  He was apprehended by civil authorities in Texas City, TX, and returned to military authorities at Fort Hood on 21 February 1975.  

8.  On 25 February 1975, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 27 August 1974 through  21 February 1975.

9.  On 26 February 1975, 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, 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).

10.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  He also indicated that he was making this request of his own free will and he had not been subjected to any coercion and he indicated that he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if the 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.  He submitted a statement in his own behalf in which he stated that he went home on the weekend and did not return because he wanted to request a discharge from the Army.  He also stated that he had the chance to be straight but refused to do so, and that he fully realized the consequences, nonetheless he wished to make application for a discharge for the good of the service.
11.  On 28 February and 4 March 1975, the applicant’s commander and intermediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 10 March 1975, 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, directed that he receive an Undesirable Discharge Certificate, and that he be reduced to the lowest enlisted grade.  On 29 May 1975, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a Undesirable Discharge Certificate.  This form further confirms he completed a total of 3 years, 2 months, and 14 days of creditable active military service and he had 264 days of lost time.  

13.  On 19 February 1981, the Army Discharge Review Board denied the applicant's petition 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.  At the time, an undesirable discharge was normally issued.

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 applicant’s records show 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.

3.  The applicant’s previous achievements as well as his current medical condition were considered.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 did not submit evidence that would satisfy this requirement.

4.  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)                                         AR20090013869



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ABCMR Record of Proceedings (cont)                                         AR20090013869



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