IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090015770 


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 discharge to fully honorable.

2.  The applicant states that he entered the Army at a very young age and did not understand what he was giving up when he waived his rights in order to be discharged early because of personal problems at home.

3.  The applicant provides three character reference statements 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 was born on 29 July 1953 and enlisted in the Regular Army for a period of 3 years on 27 July 1971, just 2 days prior to his 18th birthday.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Cook).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  The applicant's record reveals an extensive history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 26 August 1971, for disobeying a lawful order on or about 25 August 1971.  His punishment consisted of a forfeiture of $29.00 pay, 14 days of restriction, and 14 days of extra duty;

	b.  on 5 November 1971, for violating a general regulation on or about 2 November 1971.  His punishment consisted of a forfeiture of $25.00 pay;

	c.  on 26 January 1972, for twice failing to go at the time prescribed to his appointed place of duty on or about 19 and 20 January 1972, disobeying a lawful order on or about 19 January 1972, and being incapacitated on duty as a result of previously indulging in intoxicants on or about 19 January 1972.  His punishment consisted of a forfeiture of $70.00 pay, 14 days of restriction, and a reduction to private/E-2 (suspended for 30 days); and

	d.  on 1 August 1972, for absenting himself from his appointed place of duty on or about 31 July 1972.  His punishment consisted of reduction to private/E-2, a forfeiture of $65.00 pay, and 14 days of extra duty.

4.  On 17 April 1973, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 15 May 1973.  He returned to military control on 21 February 1974.

5.  On 22 April 1974, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods on or about 17 April 1973 through on or about 21 February 1974 and on or about 8 April 1974 through on or about 17 April 1974.

6.  On 26 April 1974, the applicant consulted with legal counsel and was advised 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).

7.  In his request for discharge, the applicant acknowledged that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated that he understood that 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 that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  The applicant's immediate commander recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.

9.  On 9 May 1974, the applicant's intermediate commander also recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 25 May 1974, 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.  The separation authority directed he receive an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  On 29 May 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 1 year, 11 months, and 17 days of creditable active service and he had 320 days of lost time.

11.  On 26 November 1980, the Army Discharge Review Board granted the applicant relief in the form of an upgrade of his character of service to a general under honorable conditions discharge.  Accordingly, he was issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his new character of service.

12.  The applicant provides three character reference letters in support of his request as follows:

	a.  In a letter, dated 31 March 1974, the Director of Gracie Mansion, New York City, NY, states that the applicant was employed as a chef at the Gracie Mansion from July 2000 to April 2003.  He is a dedicated, highly motivated, and talented individual, who conducts his work with efficiency, responsibility, and warmth.  He would be an asset to any organization.

	b.  In a letter, dated 31 December 2001, one of the applicant's colleagues at Gracie Mansion states that the applicant is one of the most capable and creative bakers she has ever met.  He is a gentleman as well as an honorable and hard-working individual with a gentle sense of humor and deep dedication to his job.

	c.  In a letter, dated 7 January 2004, the former mayor of New York City, NY, states that the applicant is an intelligent, hardworking, and dedicated chef, who can handle difficult situations with grace and aplomb.  He would be an asset to any organization.

13.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 contends that his undesirable discharge should be upgraded.

2.  The evidence of record shows that the applicant was nearly 18 years of age at the time he enlisted in the Regular Army and was 20 years of age at the time he was AWOL.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service without being AWOL for 320 days.  Furthermore, there is no evidence in the applicant's records and the applicant did not provide substantiating evidence that shows his AWOL was the result of his age.

3.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Notwithstanding the strong character reference letters submitted by the applicant, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

5.  Based on the applicant's record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090015770



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ABCMR Record of Proceedings (cont)                                         AR20090015770



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