IN THE CASE OF:		  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017147 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he did not do what he was accused of. 

3.  The applicant provides no additional documents in support of this 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 17 June 1974.  He completed the required training and was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant received non-judicial punishment as a result of the following offenses under Article 15, Uniform Code of Military Justice (UCMJ) proceedings:

* 14 October 1975, absent without leave (AWOL) from 26 September 1975 to 29 September 1975
* 28 April 1976, possession of a weapon
* 2 July 1976, failure to repair

4.  The applicant's DD Form 458 (Charge Sheet), dated 3 August 1976, lists the following charges:

* Intent to unlawfully obtain $100.00 by communicating a threat to a Soldier
* Unlawfully striking a Soldier in the face with his fist
* Disrespect towards a commissioned officer
* Wrongfully communicating a threat to kill a Soldier

5.  On 19 August 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting a 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 or dishonorable discharge.  He further acknowledged he understood that if his discharge request were 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 20 August 1976, the separation authority directed that the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an Undesirable discharge Certificate.  On 25 August 1976, the applicant was discharged accordingly.  The DD Form 214 that he was issued confirms he completed a total of 2 years, 2 months, and 6 days of creditable active service with 3 days of time lost.

8.  On 2 February 1984, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

9.  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 VA 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. 

10.  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.

11.  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 voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that the request was made under coercion or duress.

2.  The applicant’s record of indiscipline includes three punishments under Article 15, UCMJ and 4 days AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his 

service unsatisfactory.  Therefore, he is not entitled to a general under honorable conditions or an honorable discharge.

3.  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)                                         AR20090017147



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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