IN THE CASE OF:	  

		BOARD DATE:	    27 July 2010

		DOCKET NUMBER:  AR20090020463 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he feels that his discharge should be upgraded because he had already served in an honorable manner from 1965 to 1968 and continued to do so until problems with his son started.

3.  The applicant provides a self-authored statement, a statement from his wife, and 16 pages from his military personnel records. 

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 was inducted into the Army for a period of 2 years on 16 July 1965 and was honorably released from active duty on 12 July 1967.  Upon completion of basic and advanced individual training, he was awarded the military occupational specialty 11B (Light Weapons Infantryman).  The highest grade the applicant attained during this enlistment was private/pay grade E-2.

3.  The applicant enlisted in the Regular Army for a period of 3 years on              9 December 1968.  Records show the applicant was 24 years of age at the time of his second enlistment.  The highest grade the applicant attained during this enlistment was private first class/pay grade E-3.

4.  On 3 January 1966, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 28 December 1965 to 3 January 1966.  The punishment consisted of forfeiture of $20.00, 14 days restriction to the company area, and 14 days extra duty.

5.  On 2 July 1966, the applicant received NJP under Article 15, UCMJ, for sleeping on guard duty.  The punishment consisted of forfeiture of $20.00.

6.  On 7 December 1966, the applicant received NJP under Article 15, UCMJ, for dereliction of duty.  The punishment consisted of reduction to the grade of private/pay grade E-2, forfeiture of $15.00, 14 days restriction, and 14 days extra duty.  The applicant appealed this Article 15 and the appellate authority granted his request in part.  The punishments of reduction to private/pay grade E-2 and forfeiture of $15.00 was suspended until 31 January 1967.

7.  On 27 March 1967, the applicant received NJP under Article 15, UCMJ, for attempting to enter the post gate without proper identification and liberty pass. The punishment consisted of reduction to the grade of private/pay grade E-2.

8.  On 28 March 1967, the applicant was convicted by a summary court-martial for two specifications of failing to go to his appointed place of duty, guard mount and roving patrol.  The sentence consisted of forfeiture of $50.00.

9.  On 5 July 1967, the applicant was convicted by a summary court-martial for AWOL from 6 April 1967 to 9 April 1967 and attempting to enter the post gate without proper identification.  The sentence consisted of forfeiture of $50.00.

10.  On 4 February 1969, the applicant received NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.  The punishment consisted of forfeiture of $29.00.

11.  On 14 May 1969, the applicant was convicted by a special court-martial of two specifications of AWOL from 2 April 1969 to 3 April 1969 and from 12 April 1969 to 16 April 1969.  The sentence consisted of reduction to the grade of private/pay grade E-1, forfeiture of $40.00 pay per month for 4 months, and confinement at hard labor for 4 months. 

12.  On 5 March 1970, the applicant received NJP under Article 15, UCMJ, for leaving his guard post without being proper relieved.  The punishment consisted of reduction to the grade of private/pay grade E-2 (suspended for 30 days), forfeiture of $34.00, suspended for 30 days, 14 days restrictions, and 14 days extra duty.

13.  On 14 September 1970, charges were preferred against the applicant for being AWOL from 3 August 1970 to 13 September 1970.

14.  On 14 September 1970, the applicant consulted with counsel and voluntarily requested a discharge under the provision of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant’s request for discharge states he had not been subjected to coercion with respect to the request for discharge. 

    a.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

    b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant did not submit a statement in his own behalf. 

15.  The immediate commander and intermediate commanders recommended approval of the applicant’s request for discharge with a characterization of service of under other than honorable conditions.

16.  On 9 October 1970, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, with a character of service of under other than honorable conditions.

17.  The applicant’s DD Form 214 shows he was discharged on 6 November 1970 in accordance with chapter 10, Army Regulation 635-200, for the good of the service with service characterized as under other than honorable conditions.  At the time he had completed 1 year, 7 months and 5 days of net active service this period.  The DD Form 214 shows he had a total of 136 days of lost time.

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

19.  In support of his request the applicant provides a self-authored statement, a statement from his wife, and 16 pages from his military personnel records.

20.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, AWOL over 30 days.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

    a.  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, under other than honorable conditions, would normally be furnished an individual who was discharged for the good of the service.

    b.  Army Regulation 625-200, 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 he feels that his discharge should be upgraded because he had already served in an honorable manner from 1965 to 1968 and continued to do so until problems with his son started.

2.  The applicant’s request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the type of discharge was proper and the characterization of service directed was equitable.

3.  The evidence of record shows the applicant received six Article 15s and three courts-martial during the period of service under review.  The evidence of record clearly shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the applicant’s overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general under honorable conditions discharge.

4.  In order to justify correction of 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.  Therefore, in view of all of the above, 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)                                         AR20090020463





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ABCMR Record of Proceedings (cont)                                         AR20090020463



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