IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090014336 


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 under honorable conditions discharge.

2.  The applicant provides a summary of his military and post-service history including his civilian accomplishments.

3.  The applicant provides two letters of support; two certificates of completion; and a document titled, "Certificate - Conducting Business under an Assumed Name" in support of this application.

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 military records show he enlisted in the Regular Army on 12 January 1968.  He was awarded the military occupational specialty of light weapons infantryman and was promoted to pay grade E-4.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  Records show the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 4 October 1969 for failing to go at the prescribed time to his appointed place of duty.

4.  On 15 August 1970, the applicant was found guilty pursuant to his pleas by a special court-martial of violating a lawful general regulation by wearing fatigue trousers that had unauthorized alterations, for failing to go at the time prescribed to his appointed place of duty, and for breaking restriction during the period 16 June 1970 to 19 June 1970.
 
5.  While the applicant's discharge packet is not available, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that on 9 October 1970 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.  He was furnished an Undesirable Discharge Certificate.  His DD Form 214 shows he completed 2 years, 8 months, and 28 days of active military service.

6.  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.

7.  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.

8.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant accepted nonjudicial punishment and was convicted by a special court-martial.

2.  In the absence of evidence to the contrary, it is presumed that what the Army did was correct.  Even though the applicant's records do not contain his discharge packet, the evidence indicates he was voluntarily discharged under the provisions of Army Regulation 635-200 in lieu of trial by court-martial.  As such, it is presumed that his discharge process was accomplished in accordance with applicable regulations.

3.  Based on this 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, he is not entitled to either a general or an honorable discharge.

4.  The applicant's character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the actions that he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20090014336



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ABCMR Record of Proceedings (cont)                                         AR20090014336



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