IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019549 


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 undesirable discharge to honorable.

2.  The applicant states that at the time his wife was expecting their first child she got sick.  His problems in the military began when his request to go see about his family was turned down three times.  He also had problems due to religious reasons.

3.  The applicant provides no additional documentation in support of his application.

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.  On 12 June 1967, the applicant enlisted in the Regular Army for 3 years.  During the classification and personnel interviews, he provided a copy of a letter from his local Selective Service System Board, dated 15 May 1967, stating that he was classified 1-A-O [conscientious objector] and if inducted into the Armed Forces, he would be assigned to noncombatant service.  The applicant was retained at the reception station pending a final decision on his classification status.

3.  On 23 June 1967, the applicant requested to be separated from the Army based on his religious beliefs.   On 24 October 1967, his request was denied.

4.  On 12 December 1967, the applicant was counseled and he requested to receive training in Army Career Group 63 (Mechanical Maintenance).  He indicated that he understood he may receive training with weapons and may be required to maintain, fire, qualify, and carry a weapon in various ceremonies or duties.  He felt that he could do this without violating his religious teachings and beliefs.

5.  Subsequently the applicant was assigned for training at Aberdeen Proving Ground, MD, for training in military occupational specialty 63B (Wheel Vehicle Mechanic).

6.  On 3 March 1968, the applicant was reported absent without leave (AWOL).  He surrendered to military authorities at Fort Dix, NJ on 19 July 1968.  The available records do not contain documentation of the disciplinary action taken, if any, for this period of AWOL.

7.  On 20 February 1969, the applicant was convicted by a special court-martial of AWOL from 13 August 1968 to on or about 22 January 1969.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of $30.00 pay per month for 6 months.

8.  On 19 March 1969, the applicant was convicted by a special court-martial of willfully disobeying his superior officer.  His sentence consisted of confinement at hard labor for 4 months.  He was released from confinement on or about 
12 October 1969.

9.  On 19 November 1969, the applicant again departed AWOL.  He was returned to military control on or about 22 February 1970.  The available records do not contain a copy of the DD Form 458 (Charge Sheet) for this AWOL period.


10.  On 5 March 1970, the applicant consulted with legal counsel and he 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.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

11.  After consulting with counsel the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

12.  The applicant's commander recommended approval of the applicant's request, stating that he was accused of conduct rendering him triable by court-martial for an offense punishable by a bad conduct or a dishonorable discharge.

13.  On 16 March 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).  Accordingly, on 24 March 1970 the applicant was discharged.  He had completed a total of 1 year, 5 months, and 3 days of creditable active service and he had accrued 660 days of time lost due to AWOL and confinement.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.

16.  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.

17.  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 undesirable discharge should be upgraded to honorable because of his family problems and religious beliefs.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20090019549



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ABCMR Record of Proceedings (cont)                                         AR20090019549



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