IN THE CASE OF:	

		BOARD DATE:	  09 March 2010

		DOCKET NUMBER:  AR20090017409 


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, an upgrade of his under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he is requesting medical benefits from the Department of Veterans Affairs (VA) and that President Carter previously upgraded all undesirable discharges to fully honorable.

3.  The applicant did not provide any additional documentary evidence 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 for a period of 3 years on 12 March 1971 and was assigned to Fort Leonard Wood, MO, for completion of basic and advanced individual training.

3.  On 23 April 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the periods on or about 10 April 1971 through on or about 13 April 1971 and on or about 14 April 1971 through on or about 18 April 1971.  His punishment consisted of a forfeiture of $50.00 pay for 2 months, 30 days of restriction, and 7 days of extra duty.

4.  On 11 May 1971, the applicant departed his training unit in an AWOL status; he returned to his unit on 24 May 1971.  However, he again departed his training unit in an AWOL status on 26 May 1971 and was dropped from the rolls on the same date.  He ultimately surrendered to military authorities in Kansas City, MO, on 9 May 1972 and was transferred to Fort Riley, KS.

5.  On 11 May 1972, the applicant departed his Fort Riley, KS, unit in an AWOL status and was dropped from the Army rolls on the very next day.  However, he was apprehended by civil authorities in Riverside, MO, on 12 August 1972 and was again returned to Fort Riley, KS.

6.  On 5 September 1972, court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ for three specifications of being AWOL during the periods on or about 11 May 1971 through on or about 24 May 1971, on or about 27 May 1971 through on or about 9 May 1972, and on or about 11 May 1972 through on or about 11 August 1972.

7.  On 7 September 1972, 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 dishonorable discharge, 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).

8.  In his request for discharge, the applicant acknowledged that he was making this request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications that were attached to it.  He also indicated he understood that if his request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  He further declined to submit a statement in his own behalf.

9.  On 8 September 1972, the applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 15 September 1972, 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 and directed he receive an Undesirable Discharge Certificate.  On 25 September 1972, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 months and 27 days of creditable active military service and had 467 days of lost time.

11.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 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.

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 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.

15.  According to the Manual for Courts Martial, the maximum punishment for violating Article 86 under the UCMJ is as follows:  (a) for not more than 3 days, confinement for 1 month and forfeiture of two-thirds pay per month for 1 month; (b) for more than 3 days but not more than 30 days, confinement for 6 months, and forfeiture of two-thirds pay per month for 6 months; (c) for more than 30 days, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year; and (d) for more than 30 days and termination by apprehension, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.

16.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, including possible personal problems, would also be considered upon application by the individual.  In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs as required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.

17.  Individuals had to apply for consideration by the SDRP and the program expired on 4 October 1977.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's reference to President Carter's discharge program is actually the DOD SDRP, often referred to as the "Carter Program."  It mandated the upgrade of administrative discharges if the applicant met one of the specified criteria.  The applicant, however, does not meet any of the criteria for an upgrade of his discharge.  Additionally, there is no evidence the applicant applied for the program and the program officially expired on 4 October 1977.

3.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges 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 consulted with counsel and was advised of the contemplated trial by court-martial for his offenses.  Only then did he voluntarily, willingly, and in writing request 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.  The ABCMR does not correct records for the purpose of establishing entitlements to 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 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)                                         AR20090017409



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ABCMR Record of Proceedings (cont)                                         AR20090017409



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