IN THE CASE OF:	  

		BOARD DATE:	    17 February 2010

		DOCKET NUMBER:  AR20090014277 


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 undesirable discharge (UD) be upgraded to honorable.

2.  The applicant states he was "railroaded into signing a Chapter 10 discharge." He didn't understand what he was signing at the time and after 37 years it should be changed.

3.  The applicant provides no supporting documentation.

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 was inducted on 30 April 1971.  He completed basic training but did not complete his advanced individual training.

3.  Between 13 December 1971 and 26 June 1972, the applicant received 13 negative counseling sessions for diverse reasons including poor personal grooming, disrespect toward his instructors, failure to attend classes, missing formations, and five periods of AWOL (absence without leave).  What, if any, punishment the applicant received for his first reported period of AWOL (3 through 8 January 1972) is not of record.

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

	a.  on 17 December 1971, for two specifications of willfully disobeying a lawful order;

	b.  on 17 March 1972, for failure to go to his appointed place of duty on two occasions and being AWOL from 9 through 12 March 1972;

	c.  on 11 April 1972, for one day of AWOL; and 

	d.  on 27 July 1972, for AWOL from 14 through 25 July 1972;

5.  On 3 May 1972, a summary court-martial found the applicant guilty of failure to go to his appointed place of duty and being AWOL from 24 through 26 April 1972.

6.  On 28 June 1972, the unit commander notified him of the intended separation action due to unfitness under Army Regulation 635-212.

7.  On 30 June 1972 the applicant exercised his rights by requesting a personal appearance before a board of officers to review his separation.  

8.  On 24 August 1972, the board of officers recommended the applicant be discharged for unfitness and issued a UD.

9.  The discharge authority approved the request for separation and directed the applicant be afforded a UD.


10.  The applicant was discharged on 25 September 1972 with 1 year, 3 months, and 8 days of creditable service.  He had 48 days of lost time.

11.  On 13 November 1973, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  As then in effect, it provided the following:

	a.  Chapter 3 outlines the criteria for characterization of service.  Paragraph  3-7a states an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b state a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.; and  

	b.  Chapter 10, 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.  

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  

Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was "railroaded into signing a Chapter 10 discharge." He didn't understand what he was signing at the time and after 37 years it should be changed.

2.  The applicant was not discharged under Army Regulation 635-200, Chapter 10 but rather under Army Regulation 635-212.  He did not have court-martial charges pending and as such he would not qualify for consideration under Chapter 10.

3.  The applicant was afforded the opportunity to submit statements in his own behalf which he did at the board of officers hearing.

4.  The record does not contain and the applicant has not provided any evidence that his discharge was coerced or he was "railroaded" into accepting this type of discharge. 

5.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

6.  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)                                         AR20090014277





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ABCMR Record of Proceedings (cont)                                         AR20090014277



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