IN THE CASE OF:	  

		BOARD DATE:	    13 May 2010

		DOCKET NUMBER:  AR20090019120 


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 under other than honorable conditions discharge to honorable.

2.  The applicant states his discharge was inequitable because it was based on an incident, not for medical reasons such as mental stress and his knees.

3.  The applicant provides no documentation 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 enlisted in the Regular Army on 28 February 1973.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).
3.  A DA Form 20 (Enlisted Qualification Record) shows:

* in item 38 (Record of Assignments) he was dropped from the rolls as a deserter on 2 July 1974
* in item 44 (Time Lost) he was absent without leave (AWOL) three times with a total of 71 days lost 

4.  The record shows, on 3 May 1974, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL during the periods 27 January 1974 to 26 February 1974 and 8 April 1974 to 10 April 1974.

5.  On 16 July 1974, the applicant was charged with being AWOL during the period 3 June 1974 to 12 July 1974.  

6.  On 18 July 1974, 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 - Enlisted Personnel).  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 undesireable discharge, and of the procedures and rights that were available to him.

7.  The applicant's separation packet includes a statement signed by him showing he desired a discharge because he could not adjust to the military and if he were required to remain he would go AWOL until he got out.  

8.  A DA Form 3822-R (Report of Mental Status Evaluation) completed as part of the applicant's separation proceedings shows he was found to have no significant mental illness.

9.  A Standard Form 88 (Report of Medical Examination) completed as part of the applicant's separation proceedings shows he was in good health.

10.  On 9 August 1974, the separation authority approved the applicant's request for discharge and directed that he receive a DD Form 258A (Undesirable Discharge Certificate).  On 28 August 1974, the applicant was discharged accordingly with an under other than honorable conditions characterization of service.  He completed a total of 1 year, 2 months, and 22 days of creditable active military service with 71 days of time lost.

11.  The record is void of documentation showing the applicant suffered from any mental or physical ailments that may have affected his ability to serve.

12.  On 19 June 1981, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. 

13.  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 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 an individual who was discharged for the good of the Service.  

14.  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.

15.  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's request for upgrade of his discharge to honorable was carefully considered and not supported by the evidence.  

2.  The applicant's record shows he 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.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Based on his record of indiscipline, which includes 71 days of time lost due to AWOL, the applicant's service clearly does 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)                                         AR20090019120





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ABCMR Record of Proceedings (cont)                                         AR20090019120



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