BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090014698 


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 an upgrade of his under other than honorable conditions discharge and correction of his DD Form 214 (Report of Separation from Active Duty) as follows:

	a.  Items 6a (Grade, Rate, or Rank) and 6b (Pay Grade) to show his rank/grade as private (PV2)/E-2 instead of private (PVT)/E-1.

	b.  Item 9d (Effective Date) to show the Army discharged him on 24 August 1978 instead of 7 August 1978.

	c.  Item 20 (Highest Education Level Successfully Completed) to show he completed 11 years instead of 10 years of secondary school education.

	d.  Item 29 (Signature of Person Being Separated) from "Separatee Unavailable for Signature" to show he was available and denied access to information.

2.  The applicant states he served for 3 years in a high school Reserve Officers' Training Corps (ROTC) Program and his recruiter told him he would need to be demoted below E-2 due to his 3 years of ROTC.  He adds that he was under house arrest and the Army did not discharge him until 24 August 1978.  He also states that he went to school at Central Texas College for 6 months and needed only 2 weeks to finish his high school but school was cancelled.  He concludes that he was under house arrest at the time of his discharge and no one presented him with his discharge papers to sign and that he neither knew the reason for his separation nor was he made aware of what was going on.

3.  The applicant provides a copy of his DD Form 214, dated 7 August 1978; a copy of his high school record, dated 11 August 2009; copies of his several cumulative records of school attendance or tests; and a copy of an undated self-authored statement 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 in the rank/grade of PV2/E-2 on 5 November 1975.  His DD Form 4 (Enlistment or Reenlistment Agreement) shows he had completed a 10th grade education at the time of his enlistment.  Additionally, item 41 (Remarks) of his DD Form 1966 (Application for Enlistment in the Armed Forces) shows the entry, "I have successfully completed the 10th Grade."

3.  Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 (Personnel Qualification Record) which was created upon his entry in the RA and authenticated by him at a later date shows he had not completed his high school education.

4.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 12B (Combat Engineer).  He was assigned to the 8th Engineer Battalion, Fort Hood, TX.  He was promoted through the ranks to private first class/E-3 on 1 December 1976 and specialist four (SP4)/E-4 on 6 May 1977.

5.  His records show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 4 March 1976, for failing to go at the time prescribed to his appointed place of duty on or about 3 March 1976.  His punishment consisted of 7 days of restriction, 7 days of extra duty, and a forfeiture of $50.00 pay.

	b.  on 19 May 1977, for being absent without leave (AWOL) from on or about 5 April 1977 to on or about 27 April 1977.  His punishment consisted of  a reduction to PV2/E-2 (suspended for 120 days), 22 days of extra duty, and a forfeiture of $100.00 pay.

6.  On 8 May 1978, he departed his Fort Hood, TX, unit in an AWOL status and was subsequently dropped from the Army rolls on 7 June 1978.  He surrendered to military authorities at Fort Sam Houston, TX, on 21 June 1978.

7.  On 26 June 1978, his command preferred court-martial charges against him for one specification of being AWOL from on or about 8 May 1978 to on or about 21 June 1978.

8.  On 30 June 1978, he consulted with legal counsel who advised him 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).

9.  In his request for discharge, he indicated 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 or a discharge under other honorable conditions.  He further acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further declined to submit a statement on his own behalf.

10.  On 30  June 1978 and 7 July 1978, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an under other than honorable discharge.

11.  On 11 July 1978, 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 Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.

12.  On 25 July 1978, Headquarters, 1st Cavalry Division, Fort Hood, TX, published Orders 156-43, reducing him Form SP4/E-4 to PVT/E-1 in accordance with paragraph 7-64c of Army Regulation 635-200 and the separation authority's orders.

13.  On 31 July 1978, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 146-3 directing his discharge effective 7 August 1978.

14.  On 7 August 1978, he was accordingly discharged.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 6 months, and 28 days of creditable active military service and he had 66 days of lost time.  This form also provides:

	a.  Items 6a and 6b show his rank/grade as PVT/E-1.

	b.  Item 9d shows his date of discharge as 7 August 1978.

	c.  Item 20 shows he completed a 10th grade education.

	d.  Item 29 shows he was unavailable for signature.

15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  He submitted the following documents:

	a.  an undated self-authored statement wherein he explains the circumstances of receiving his NJP;

	b.  a copy of a high school record, dated 11 August 2009, that shows he attended South San Antonio High School from 1970 to 1973 but did not graduate from high school.  This form does not show he successfully completed 11th grade and was promoted to 12th grade; and

	e.  copies of his several cumulative records of school attendance or tests.

17.  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.

18.  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.

19.  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.

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It stated that items 6a and 6b showed the Soldier's rank and grade at the time of separation; item 9d showed the date of discharge or release from active duty; and item 20 was obtained from the Soldier's records and showed, in years, the highest education level successfully completed.  Item 29 reflects the signature of the member being separated, if available.  If unavailable, incompetent, confined, AWOL, or otherwise unable to sign, an entry that he/she is unavailable to sign is entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his DD Form 214 should be corrected.
2.  With respect to his rank/grade, the evidence of record shows that when his voluntary discharge in lieu of a court-martial was approved, the separation authority also directed his reduction to the lowest enlisted grade.  His DD Form 214, therefore, correctly shows his PVT/E-1 rank/grade at the time of discharge.

3.  With respect to his education, the evidence of record shows the highest level of education he completed at the time of his discharge was that of a 10th grade education.  There is no evidence that he had successfully completed 11th grade at the time of his discharge.  Therefore, the entry shown on his DD Form 214 is correct.

4.  With respect to his date of separation, the evidence of record shows his discharge was approved by the separation authority on 11 July 1978 and that discharge orders were subsequently issued directing his discharge on 7 August 1978.  There is no evidence that he was discharged at a later date.  Therefore, the date of discharge shown on his DD Form 214 is correct.

5.  Contrary to his contention that he was unaware of what was going on, the evidence of record shows he consulted with counsel and was fully aware of the court-martial charges preferred against him.  There is no evidence that he was under house arrest at the time of his discharge on 7 August 1978.

6.  With respect to his signature, there is no evidence which shows the reason he did not sign the DD Form 214; nevertheless, the absence of his signature does not invalidate this form.

7.  With respect to upgrading his discharge, his 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.  He 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 his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

8.  There is no evidence in the available records nor did he provide documentation to warrant an upgrade of his discharge.  Based on his 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, he 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)                                         AR20090014698



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ABCMR Record of Proceedings (cont)                                         AR20090014698



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