BOARD DATE:	3 December 2009  

		DOCKET NUMBER:  AR20090015521 


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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states that proper procedures were not followed in his case.  He claims his UD was not the result of a court-martial sentence and only occurred because he received bad advice from his noncommissioned officer in charge (NCOIC) who asked him if he also wanted to be discharged.  He indicates that as a stupid kid, he agreed and had it not been for this bad advice, he would have completed his final 10 months of service and received an HD.

3.  The applicant provides a 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 record shows he enlisted in Regular Army and entered active duty on 5 April 1967.  He was trained in and awarded military occupational specialty 72B (Central Office Telephone Operator).  The highest rank he attained while serving on active duty was specialist four/E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 41 (Awards and Decorations) that he earned the National Defense Service Medal, Parachutist Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  Item 44 (Time Lost) of the applicant's DA Form 20 shows he accrued 192 days of time lost during the following separate periods of being absent without leave (AWOL):  7 October 1968 to 22 October 1968 (16 days); 27 March 1969 to 24 April 1969 (29 days); and 25 April 1969 to 18 September 1969 (147 days).

5.  A DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) shows that on 6 November 1968 a summary court-martial (SCM) found the applicant guilty of being AWOL from on or about 7 October 1968 to on or about 23 October 1968.  The resultant sentence was a forfeiture of $78.00 for 1 month and performance of hard labor without confinement for 30 days.

6.  The applicant's record shows that he twice accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on25 January 1969 and 18 March 1969.

7.  On 28 October 1969, a special court-martial (SPCM) found the applicant guilty of being AWOL from on or about 27 March 1969 to on or about 19 September 1969.  The resulting punishment was confinement at hard labor for 6 months (suspended for 60 days), forfeiture of $80.00 pay per month for 3 months, and a reduction to private/E-1.

8.  On 8 December 1969, the applicant's unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness based on his frequent incidents of a discreditable nature with military authorities that included SPCM and SCM convictions and his acceptance of NJP on two separate occasions.

9.  On 11 December 1969, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to representation by counsel.  He further elected not to make a statement in his own behalf.

10.  On 19 December 1969, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed the applicant receive a UD.  On 24 December 1969, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years, 2 months, and 8 days of creditable active military service and that he accrued 192 days of time lost due to AWOL.

11.  On 13 February 1973, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an HD or general under honorable conditions discharge (GD) if warranting by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

13.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, 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.

14.  Army Regulation 635-200, 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 contentions that proper procedures were not used in his discharge processing and his discharge was the result of bad advice he received from his NCOIC were carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly advised by his commander that separation action was being initiated and that he was afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of rights.

3.  The record further shows that after being counseled on his rights, the applicant voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record documents an extensive disciplinary history that includes SPCM and SCM convictions and two records of NJP.  As a result, it is clear his UD accurately reflects the overall qualify of his service.  It is also clear his record did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

5.  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)                                         AR20090015521



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ABCMR Record of Proceedings (cont)                                         AR20090015521



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