IN THE CASE OF:	

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090014022 


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 be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he knows he was not a perfect Soldier and he is not asking for an honorable discharge; however, he is asking that his records be reviewed for an upgrade because he served on the demilitarized zone (DMZ).  There was never once any wrongdoing by him while guarding his post.  He also states that he has not gotten into trouble since being discharged.  He is also married and has had great jobs.  He states he served well at the DMZ and that he completed over 2 years of good service.

3.  The applicant did not submit any additional documentary evidence 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 enlisted in the Regular Army (RA) for a period of 3 years on 11 June 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewmember).  He was honorably discharged on 13 March 1969 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 14 March 1969.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  On 4 September 1968, the applicant departed his Fort Ord CA unit in an absent without leave (AWOL) status.  He returned on 10 September 1968.

4.  The applicant's records show he served in Korea from on or about 2 May 1969 to 1 June 1970.  His awards and decorations include the National Defense Service Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14), and the Armed Forces Expeditionary Medal (Korea). 

5.  On 18 April 1970, while in Korea, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order by consuming alcohol in the barracks on or about 17 April 1970.  His punishment consisted of 14 days of restriction and extra duty. 

6.  On 31 July 1970, while at Fort Meade, MD, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL during the period from on or about 20 July to 30 July 1970.  His punishment consisted of a reduction to private (PVT)/E-1.

7.  On 8 September 1970, the applicant departed his Fort Meade unit in an AWOL status.  He returned on 30 September 1970.  However, on 1 October 1970, he again departed in an AWOL status and was subsequently dropped from the rolls on the same date.  He returned on 5 October 1970.  

8.  On 7 October 1970, he departed in an AWOL status a third time and was dropped from Army rolls on 12 October 1970.  He surrendered to military authorities on 13 July 1971.

9.  On 16 July 1971, court-martial charges were preferred against the applicant for three specifications of being AWOL during the periods from on or about 
2 September through 30 September 1970, on or about 1 October through 
5 October 1970, and on or about 7 October 1970 through 13 July 1971.
10.  On 19 July 1971, the applicant consulted with legal counsel and he 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 – Enlisted Personnel).

11.  In his request for discharge, the applicant acknowledged he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that if such discharge was approved, he could encounter substantial prejudice in civilian life, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veteran Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  On 16 August 1971, the applicant’s immediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  

13.  On 25 August 1971, 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 he receive an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 25 August 1971.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 2 years, 4 months, and 9 days of creditable active service. He also had 274 days of lost time.

14.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  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. 

16.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a general discharge based on completion of 2 years of good service to include service on the DMZ.

2.  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.  The applicant’s narrative reason for discharge is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  Based on the applicant’s record of indiscipline, his service clearly does 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 an honorable or a general, under honorable conditions 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)                                         AR20090014022



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ABCMR Record of Proceedings (cont)                                         AR20090014022



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