IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20090018548 


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 undesirable discharge to fully honorable.

2.  The applicant states that he has been an outstanding citizen since his discharge and that he deserves an upgrade.

3.  The applicant provides two self-authored statements, dated 5 and 9 October 2009; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 October 1970; copies of newspaper articles showing arrest records of various individuals; and several letters of support or character reference letters, 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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His reconstructed records show he enlisted in the Regular Army for a period of 3 years on 27 September 1967.  His records also show he completed basic combat training but he did not complete advanced individual training or hold a military occupational specialty.  At the time of his discharge, he was assigned to Fort Ord, CA.

4.  His reconstructed records further show he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar. 

5.  His reconstructed records show a history of lost time as follows:  6 January through 14 January 1968; 6 May through 11 September 1968; 11 October through 28 November 1968; 23 January through 20 February 1969; and 
21 February 1969 through 25 August 1970.

6.  The facts and circumstances of his discharge are not available for review with this case.  However, his reconstructed records contain the following documents:

	a.  Special Orders Number 281, issued by Headquarters, U.S. Army Training Center, Fort Ord, CA, show he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) with an undesirable discharge.

	b.  A properly-constituted DD Form 214 shows he was discharged on 9 October 1970 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with an undesirable discharge.  He completed a total of 
1 year, 11 months, and 14 days of creditable active service and he had 401 days of lost time. 

	c.  A copy of an Undesirable Discharge Certificate, dated 9 October 1970.

7.  On 11 September 1978, the Army Discharge Review Board denied his petition for an upgrade of his discharge.



8.  He submitted the following documents:

	a.  A self-authored statement, dated 5 October 2009 wherein he describes himself as the arresting officer in several arrests that occurred at Newberry Department Store listed in a local newspaper and that the newspaper did not mention his name for his protection. 

	b.  Copies of several newspaper articles listing various arrests of various individuals at a department store.

	c.  A self-authored statement, dated 9 October 2009, wherein he gives a background of his enlistment.  He states that during his military service, he bought a firearm but did not register it because he was unaware of the rules.  A month later, he was investigated by officials at the "Civilian Investigation Agency or CIA" who threatened to take him to trial and jail.  Once a trial date was set, he sought help from a local minister who threatened to go to the newspapers.  The Army ultimately discharged him but reneged on its promise of giving him a general discharge.

	d.  A letter of recommendation, dated 22 June 2006, from a coworker who describes him as trustworthy and a hard worker.

	e.  An undated letter from his landlord who describes him and his wife as responsible, trustworthy, and earnest.

	f.  A letter, dated 20 June 2006, from a friend who describes him and his wife as church-going people.

	g.  A letter, dated 16 June 2006, from an executive director of a housing program wherein he describes him as a hard-working and determined individual.

	h.  A letter, dated 13 June 2006, from a friend who has known him for
40 years and describes him as a hard-working, God-fearing man.

	i.  An undated letter from a person who works at a hardware store and describes him as a man with a good character.

	j.  A letter, dated 12 March 2006 from a friend who describes him and his wife as helpful people.

	k.  A letter, dated 9 June 2006, from the Department of Human Services, State of Iowa, describing him as a pleasant person.

	l.  A letter, dated 10 June 2006, from a landlord who also describes him as a respected person who always paid his rent on time.

	m.  A letter, dated 22 September 2009, from a librarian who describes him as a pleasant and polite man.

	n.  A copy of a statement of account/donations to a non-profit organization.

9.  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, an under other than honorable conditions discharge is normally considered appropriate.

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 (emphasis added) 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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 9 October 1970 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.

4.  The applicant’s good standing in his community and the multiple letters of recommendations or character reference letters are noted.  However, they are not sufficiently mitigating to grant the requested relief. 

5.  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. 

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)                                         AR20090018548



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ABCMR Record of Proceedings (cont)                                         AR20090018548



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