IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090015828 


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, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that he tried very hard to adjust to military life but he could not.  He tried to fit in by learning some of the bad habits being practiced at the time (pot) but knew in his heart that he was not cut out to be a Soldier, particularly after the Watergate scandal.  Nevertheless, he completed a little over 2 years of his 3-year enlistment while others were leaving for Canada to avoid military service.  In any case, as his working career is coming to an end, he wants to close this chapter of his life with dignity.  He has lived life since his discharge with a good work ethic and great love for country and family.  He wishes for this black mark in his past to be corrected.

3.  The applicant provides four letters of recommendation and six certificates of training and/or appreciation 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 on 31 July 1972.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 12 June 1973, for absenting himself from his appointed place of duty on or about 7 June 1973.  His punishment consisted of a forfeiture of $20.00 pay and 5 days of restriction;

	b.  on 13 July 1973, for breaking restriction.  His punishment consisted of a forfeiture of $25.00 pay and 5 days of restriction;

	c.  on 10 September 1973, for being absent without leave (AWOL) during the period on or about 7 August 1973 through on or about 4 September 1973.  His punishment consisted of a forfeiture of $150.00 pay, a reduction to private (PV1)/E-1, and 45 days of extra duty;

	d.  on 19 September 1973, for being found sleeping upon his post on or about 26 July 1973.  His punishment consisted of a forfeiture of $20.00 pay and 7 days of extra duty; and

	e.  on 1 November 1973, for failing to go at the time prescribed to his appointed place of duty on or about 31 October 1973.  His punishment consisted of a forfeiture of $150.00 pay per month for 2 months (1 month suspended for
90 days) and 45 days of extra duty.

4.  On 16 July 1974, the applicant departed his Fort Lewis, WA, unit in an AWOL status and he was subsequently dropped from the rolls (DFR) of the Army on
14 August 1974.  He returned to military control on 8 September 1974.

5.  On 14 September 1974, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 16 July 1974 to on or about 8 September 1974.
6.  On 24 September 1974, the applicant consulted with legal counsel and he 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 voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

7.  In his request for discharge, the applicant acknowledged he understood 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 acknowledged that he understood that by requesting discharge he understood that if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged that he understood that 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law and could expect to encounter substantial prejudice in civilian life.

8.  On an unknown date, the applicant's immediate commander recommended approval of the applicant's discharge and that he be given an undesirable discharge.  He also remarked that the applicant stated that he was doing well until a new company commander was assigned to his unit and gave him multiple NJPs, which changed his attitude about the Army and led him to go AWOL.

9.  On 27 September 1974, the applicant’s intermediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.

10.  On 18 October 1974, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed that he receive an Undesirable Discharge Certificate and that he be reduced the lowest enlisted grade.  On
22 October 1974, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service in lieu of trial by court-martial, with a character of service of under other than honorable conditions discharge and issuance of an Undesirable Discharge Certificate.  This form further confirms the applicant had completed 2 years of creditable active military service and he had 82 days of lost time.
11.  On 18 July 1975, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

12.  The applicant submitted four letters of recommendation in which the authors describe him as dependable, reliable, and trustworthy.  He also submitted six certificates of training and/or appreciation that show his training in various areas.

13.  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.

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 (emphasis added), 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 discharge should be upgraded.

2.  The applicant's post-service personal and professional achievements were considered; however, they are not sufficiently mitigating in granting him the requested relief.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service 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.  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 has failed to submit evidence that would satisfy this requirement.  Based on his 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)                                         AR20090015828



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ABCMR Record of Proceedings (cont)                                         AR20090015828



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