IN THE CASE OF:	  

		BOARD DATE:	    20 January 2010

		DOCKET NUMBER:  AR20090014130 


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, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states that he was absent without leave (AWOL) for 4 months.  He believes his discharge was too severe.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 12 September 1974, and a copy of a Department of Veterans Affairs (VA) Form 10-10EZ (Application for Health Benefits), dated 30 July 2009, 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 for a period of 3 years on 1 February 1974 and was subsequently assigned to Fort Knox, KY, for completion of basic combat training (BCT).  The highest rank/grade the applicant attained during his military service was private/E-1.

3.  On 5 March 1974, the applicant departed his BCT unit in an AWOL status and was subsequently dropped from the Army rolls on 3 April 1974.  He was apprehended by civil authorities in Nashville, TN, and was returned to military control on 30 May 1974.

4.  On 21 June 1974, the applicant again departed his unit in an AWOL status and was dropped from the Army rolls on same date.  He returned to his unit on 30 June 1974.

5.  On 16 July 1974, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods on or about 5 March 1974 through on or about 30 May 1974 and on or about 21 June 1974 through on or about 1 July 1974.

6.  On 17 July 1974, 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 Uniform Code of Military Justice (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).

7.  In his request for discharge, the applicant indicated that he understood that he was making this request on his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledged he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate and that as a result he could 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 laws.  He further elected not to submit a statement in his own behalf.

8.  On 19 July 1974, the applicant's immediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

9.  On 9 August 1974, the applicant's senior commander also recommended approval and the issuance of an Undesirable Discharge Certificate.

10.  On 10 August 1974, 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 be reduced the lowest enlisted grade.  On 12 September 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a trial by court-martial with a character of service of under other than honorable conditions. 
This form further confirms the applicant had completed a total of 4 months and 8 days of creditable active military service and had 96 days of lost time.

11.  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.

12.  The applicant submitted a VA Form 10-10EZ in which he requested VA benefits.

13.  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.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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 evidence of record shows that the applicant 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 consulted with counsel and was advised of the contemplated trial by court-martial for his offenses.  Only then did he voluntarily, willingly, and in writing request 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.

2.  There is no evidence in the available records, nor did the applicant provide documentation that would warrant an upgrade of his discharge.  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 that requirement.

3.  Based on his record of indiscipline, 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.  Therefore, the applicant is not entitled to either an honorable or a general 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)                                         AR20090014130



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ABCMR Record of Proceedings (cont)                                         AR20090014130



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