BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090015411 


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 undesirable discharge (UD).

2.  The applicant states that he would like his discharge upgraded because he is very sick and wants to qualify for veterans' burial benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a third-party letter from his sister in support of his 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 and entered active duty on 7 August 1973.  He was trained in, awarded, and served in military occupational specialty 52B (Power Generator Mechanic/Operator).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that he attained the rank of specialist four/E-4 on 30 July 1975 and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank of private/E-1 on 21 November 1975.

4.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code) of the applicant's DA Form 2-1 shows he was twice reported absent without leave (AWOL) from 17-21 July 1974 and from 25-27 July 1974, totaling 6 days.  His record documents no acts of valor or significant achievement.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four dates for the offenses indicated:  28 June 1974, for being disrespectful in language towards his superior noncommissioned officer; 24 July 1974, for being AWOL 17-21 July 1974; 1 August 1974, for being AWOL 25-27 July 1974, for twice disobeying lawful orders and for failing to go to his appointed place at the time prescribed; and 9 October 1974, for failing to go to his appointed place of duty at the prescribed time on 4 October 1974 and for being AWOL on 7 October 1974.

6.  The applicant's official military personnel file contains a DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 7 November 1975.  This document shows he was pending a special court-martial (SPCM).

7.  The applicant's record does not include a complete separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does contain the separation authority's (Commander, Headquarters 101st Airborne Division and Fort Campbell, Kentucky) approval of the applicant's request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), and a properly-constituted DD Form 214 that identifies the authority and reason for discharge.

8.  On 25 November 1975, the applicant was discharged from active duty after completing 2 years, 3 months, and 13 days creditable active service.  The DD Form 214 issued to him at that time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200.  The DD Form 214 shows that he received a UD.

9.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  The applicant provides a letter from his sister in which she supports his request for an upgrade of his UD.  She also asks that expeditious consideration be given the applicant's case because he is very ill and has a limited remaining life expectancy.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

12.  Paragraph 3-7a of the same regulation provides that an HD 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.  Paragraph 3-7b, provides that a GD 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 HD.  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's contention that his UD should be upgraded because he is very ill and would like to qualify for veterans' burial benefits was carefully considered.  However, although his current situation is unfortunate, this factor alone is not sufficiently mitigating to support granting the requested relief.

2.  A complete separation packet containing all the facts and circumstances surrounding the applicant's discharge processing is not on file; however, the record does contain the separation authority's approval of the applicant's request for discharge and a properly-constituted DD Form 214, which carries with it a presumption of regularity in the discharge process.  The DD Form 214 confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-marital.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.

3.  Further, the evidence of record shows the applicant accepted NJP on four separate occasions for various acts of misconduct and was pending an SPCM at the time of his discharge processing.  This disciplinary history clearly did not support the issuance of an HD or GD by the separation authority at the time and does not support an upgrade of his discharge at this late date.  As a result, even given the applicant's current unfortunate circumstances, there is an insufficient evidentiary basis to support granting the requested relief at this late date.

4.  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)                                         AR20090015411



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ABCMR Record of Proceedings (cont)                                         AR20090015411



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