IN THE CASE OF:	 

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090019763 


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 undesirable discharge (UD) be upgraded.

2.  The applicant states he did not get a dishonorable discharge and wants to change it. 

3.  The applicant refers to medical documents at the Fort Dix, New Jersey Army Hospital; however, he provides no documentary evidence 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 28 May 1970, the applicant enlisted in the Regular Army and he was trained in and awarded military occupational specialty (MOS) 94B (Cook).  His record documents no acts of valor or significant achievement and shows he never advanced beyond the rank of private/E-1 during his active duty tenure.  

3.  The applicant's disciplinary history includes acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  on 9 September 1970, for failing to go to his appointed place of duty at the time prescribed and breaking restriction on 6 September 1970; and 

	b.  on 14 September 1970, for breaking restriction on 13 September 1970. 

4.  On 25 January 1971, the applicant departed from his unit at Fort Dix, New Jersey in an absent without leave (AWOL) status and he remained AWOL until he was returned to military control on 28 January 1971 which was 4 days.  

5.  On 30 January 1971, the applicant again departed AWOL from his unit and on 31 January 1971, he was dropped from the rolls of the organization.  He remained AWOL until he returned to military control on 26 March 1973 which was 787 days.  

6.  A DD Form 458 (Charge Sheet), dated 29 March 1973, shows charges were preferred against the applicant for two specifications of violating Article 85 of the UCMJ by being AWOL with the intent to remain away permanently from on or about a 25 January through on or about 29 January 1971; and for being AWOL with the intent to remain away permanently from on or about 30 January 1971 through 27 March 1973. 

7.  On 2 April 1973, 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 UCMJ, and of the possible effects of a UD.  The applicant, subsequent to this legal counsel, voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).   In his request for discharge, the applicant acknowledged he had not been subjected to coercion with respect to his request for discharge. He also acknowledged he had been advised of the implications attached to his discharge request.  


8.  The applicant also acknowledged in his discharge request that he understood he could receive a UD and as a result 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 laws.  He finally acknowledged he understood he could face substantial prejudice in civilian life as a result of receiving a UD.

9.  On 9 April 1973, the separation authority approved the applicant’s discharge request and directed that he be issued a UD.  On 16 April 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 8 months and 18 days of creditable active military service and accrued 791 days of time lost due to being AWOL.

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

11.  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 issued 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.  A UD would normally be furnished to an individual who was discharged for the good of the Service:

   a.  Paragraph 3-7a of this regulation 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.  

   b.  Paragraph 3-7b of the same regulation 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.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because his discharge was not dishonorable has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The applicant consulted with defense counsel and voluntarily requested 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.

3.  The record further shows the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in him receiving a punitive discharge only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving an UD.  His record documents no acts of valor or service warranting special recognition.  Given his extensive disciplinary history it is clear that his undistinguished record of service did not support the issuance of a general discharge or an honorable discharge by the separation authority at the time of his discharge and it is equally clear it does not support an upgrade now.

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 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)                                         AR20090019763



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ABCMR Record of Proceedings (cont)                                         AR20090019763



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