IN THE CASE OF:	

		BOARD DATE:	  28 January 2010


		DOCKET NUMBER:  AR20090015945 


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, that his undesirable discharge be upgraded to a more favorable discharge. 

2.  The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident over a 2 year and 5 month period of service with no other adverse action being taken against him.  He goes on to state that he was offered an early discharge with no explanation that would have led him to believe he would be issued an undesirable discharge.

3.  The applicant provides no additional documents with 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 19 June 1970 for a period of 3 years and training as a power generator repairman.  He completed his basic training at Fort Dix, New Jersey and his advanced individual training at Fort Belvoir, Virginia before being transferred to Korea on 18 December 1970, for assignment to a Field Artillery (Hawk) battery.  He was advanced to the pay grade of E-3 on 27 January 1971.

3.  On 21 February 1971, he was honorably discharged for the purpose of immediate reenlistment.  He had served 8 months and 3 days of total active service.  He reenlisted on 22 February 1971 for a period of 6 years.  He was advanced to the pay grade of E-4 on 10 June 1971.

4.  On 30 September 1971 a suspension of favorable personnel actions (Flagging Action) was initiated by the commander against the applicant.  It indicates the applicant was pending trial by special court-martial for possible larceny of government property.

5.  The facts and circumstances surrounding his administrative discharge are not present in his official records as they were loaned to the Department of Veterans Affairs in November 1972.  However, his records do contain a duly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) signed by the applicant which indicates he was issued an undesirable discharge, on 1 April 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 5 months and 16 days of total active service.

6.  There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate the request is being made of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  An undesirable discharge is normally considered appropriate.  There have never been any provisions for an automatic upgrade of such discharges.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a more favorable discharge, because his discharge was inequitable and he did not understand that he was being issued an undesirable discharge. 

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by 
court-martial, was administratively correct and in conformance with applicable regulations, with no violations of any of the applicant’s rights.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service to avoid a punitive discharge and a felony conviction on his records.

4. The applicant’s contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service and the seriousness of his misconduct.  His service simply does not rise to the level of a discharge under honorable conditions.

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)                                         AR20090015945



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ABCMR Record of Proceedings (cont)                                         AR20090015945



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