IN THE CASE OF:	 

		BOARD DATE:	  09 March 2010

		DOCKET NUMBER:  AR20090017441 


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 under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that he got out of the Army because of back pain.  He would now like his discharge upgraded to see if he has any benefits, including school and job training.

3.  The applicant did not provide any 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 on 22 March 1976, he enlisted in the Wisconsin Army National Guard (WIARNG) for a period of 6 years.  He agreed to remain a member of the Ready Reserve during the period of this enlistment unless sooner relieved by proper authority.

3.  His records also show he entered active duty for training (ADT) on 9 May 1976, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 11B (Infantryman).  He was honorably released from active duty to the control of his ARNG unit on
21 October 1976.  He was assigned to Company B, 132nd Support Battalion, Milwaukee, WI.

4.  On 24 August 1977, by certified letter, the applicant's immediate commander notified him that he was absent from scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTA’s) for periods 3 through 4 on 24 July 1977.  The immediate commander also notified him that he had accumulated
10 unexcused absences within a one-year period and that in view of his unexcused absence, he would be involuntarily ordered to active duty for a period of 2 years.  He was provided an opportunity to explain and/or justify his unexcused absence.

5.  On 11 October 1977, by memorandum through the chain of command to the State Adjutant General, the applicant's immediate commander requested the applicant be ordered to active duty for a period of 24 months for failing to fulfill the satisfactory participation requirements of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).

6.  On 2 December 1977, the applicant was issued active duty orders directing him to report to active duty at Fort Leonard Wood, MO, effective 18 January 1978.

7.  On 18 January 1978, the applicant failed to report for active duty and was reported in an absent without leave (AWOL) status. On 16 February 1978, he was dropped from the Army rolls.  He was ultimately apprehended by civil authorities at Racine, WI and was returned to military control at Fort Leonard Wood on 11 June 1978.

8.  On 20 June 1978, court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for one specification of being AWOL during the period on or about 18 January 1978 through on or about 11 June 1978.  

9.  On 21 June 1978, 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 Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 for the good of the service in lieu of court-martial.

10.  In his request for discharge, the applicant indicated 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 law. He further submitted a statement on his own behalf wherein he stated that the reason he was AWOL was because he was having back problems and family problems, and that the service did him no good. 

11.  On 21 June 1978, the applicant underwent a separation physical and was determined not to have any problems.  He was cleared for separation.

12.  On 21 August 1978, the applicant's immediate commander remarked that the applicant's conduct had rendered him triable by court-martial under circumstances which could have led to a bad conduct or dishonorable discharge. He further recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions character of service.

13.  On 21 August 1978, the applicant’s intermediate commander concurred with the immediate commander's remarks and recommended approval with the issuance of an under other than honorable conditions character of service.

14.  On 30 August 1978, the separation authority approved the applicant's request for discharge for the good of the service in accordance Army Regulation 635-200, chapter 10.  He directed receipt of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 3 October 1978, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form also confirms he had completed 3 months and 26 days of creditable active military service during this period, 5 months and 13 days of prior active service, and 144 days of lost time due to AWOL.

15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  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.

17.  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.

18.  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 evidence of record shows that the applicant 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 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.

3.  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.

4.  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, under honorable conditions 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)                                         AR20090017441



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ABCMR Record of Proceedings (cont)                                         AR20090017441



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