IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090015672 


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 be upgraded. 

2.  The applicant states, in effect, that he would like his discharge upgraded because it has been 40 years since he was discharged. 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) 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 enlisted in the Regular Army on 30 November 1967 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 12A (pioneer).  
3.  On 12 July 1968, in accordance with his plea, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 1 July 1968 to 2 July 1968.  He was sentenced to be confined at hard labor for 1 month, to forfeit $73.00 pay per month for 1 month, and to be reduced to E-1.  On 12 July 1968, the convening authority approved the sentence but suspended the sentence to confinement for 6 months.  On 11 October 1968, the suspended portion of the sentence was vacated. 

4.  On 25 July 1969, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 11 June 1969 to 25 June 1969.  He was sentenced to be confined at hard labor for 6 months, to forfeit $90.00 pay per month for 6 months, and to be reduced to E-1.  On 7 August 1969, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 6 months, forfeiture of $45.00 pay per month for 
6 months, and a reduction to E-1.  

5.  Records show that on 27 August 1969, while the applicant was in confinement, his unit commander recommended that he appear before a board of officers convened under the provisions of Army Regulation 635-212 (unsuitability) for the purpose of determining whether he should be discharged before the expiration of his term of service.

6.  On 4 December 1969, the unexecuted portion of the applicant's sentence to confinement and any uncollected forfeiture was remitted effective 10 December 1969. 

7.  On 18 March 1970, charges were preferred against the applicant for striking a sergeant who was then in the execution of his office by hitting him on the head with his fists.  Trial by special court-martial was recommended.   

8.  On 20 March 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

9.  On 17 April 1970, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

10.  The applicant was discharged with an undesirable discharge on 6 May 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 1 year, 11 months, and 17 days of creditable active service with 174 days of lost time due to AWOL and confinement.  

11.  On 15 January 1974, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.  At the time, an undesirable discharge was normally considered appropriate. 

13.  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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included two special court-martial convictions and 174 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The Army does not have nor has it ever had a policy that provides for the upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the applicant's requested relief.

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)                                         AR20090015672





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ABCMR Record of Proceedings (cont)                                         AR20090015672



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