IN THE CASE OF:	

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090018690 


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 that his under other than honorable discharge be upgraded.  He is also seeking an entry level separation as opposed to the discharge he received.

2.  The applicant states that he believes his separation characterization is incorrect due in part to his service being honorable for the time he served.  He contends that one isolated incident should not be considered for characterization. 

3.  He states while honorably serving in the United States Army, he went on leave, got married and returned home to find infidelity when he was shot.  He also states that he returned to duty but was never given adequate mental health treatment to cope with his circumstances.  The applicant asserts that he is attempting to file for Department of Veterans Affairs (VA) benefits for his mental health conditions and contends that since his incident he has not been able to work around people. 

4.  The applicant provides the following:

* A letter from the Department of Veterans Affairs dated 24 December 2008
* A personal statement
* Four letters of support




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 (RA) on 2 December 1970 for a period of three years.  He was scheduled to attend advanced individual training (AIT) on 9 April 1971 for military occupational specialty 05B (Radio Operator).  

3.  A DD Form 458 (Charge Sheet) shows the applicant was charged with two violations of the Uniformed Code of Military Justice:

* Charge I:  Two counts of Violation of Article 86 - 
o on or about 9 April 1971, absence himself without authority from the Radio Operator's Course 
o  on or about 5 May 1971 absence himself without authority from his unit

* Charge II:  Violation of Article 91 - on or about 17 April 1971, disobey a lawful order for his superior noncommissioned officer

4.  On 11 June 1971, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  Prior to submitting his request, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  The applicant submitted an additional statement in support of his case along with his request.

5.  In his voluntary request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his 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.  
  
6.  On 9 August 1971, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 24 August 1971, the applicant was discharged accordingly.  

7.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations).  He had completed a total of 5 months and 17 days of creditable active service with 96 days of lost time due to absence without leave (AWOL) status and military confinement.

8.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the Service.  

9.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  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.

11.  Department of the Army message, dated 011510Z August 1973, provided the standards and criteria for the program for evaluation and discharge of enlistees before 180 active duty days.  This program was implemented effective 1 September 1973 pending the revision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded and that the type of discharge be changed to an entry level separation were carefully considered and not supported by the evidence in this case.

2.  The applicant's record shows he was charged with the commission of offenses 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.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The entry level separation program was not in effect at the time the applicant was discharged.  Therefore the applicant is not entitled to a separation under this authority.

4.  Based on his record of indiscipline, which includes 96 days of time lost due to AWOL and confinement, and two counts of non judicial punishment, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to either an honorable or a general 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)                                         AR20090018690





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018690



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1