IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090020861 


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 undesirable discharge (UD). 

2.  The applicant states he suffered from a back condition noted upon his entry into the Army and this condition progressed while he was in cargo handler training.  He tried to become an airborne ranger, which was denied due to the back condition and was denied his request to serve overseas as an infantryman. 

3.  The applicant provides a SF 88 (Report of Medical Examination), SF 89 (Report of Medical History), SFs 513 (Clinical Records) and SFs 600 (Chronological Records of Medical Care) 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.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 31 January 1969, and was trained in and awarded military occupational specialty (MOS) 57H (Cargo Handler).  He attained the rank of private/E-2 on 31 May 1969, and this is the highest grade he held while serving on active duty. 

3.  The applicant's record shows that during his active duty tenure, he earned the National Defense Service Medal.  His record documents no acts of valor or significant achievement.  

4.  On 10 May 1969, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to his appointed place of duty at the time prescribed.  

5.  On 23 March 1970, the applicant departed absent without leave (AWOL) from the Special Processing Detachment, Fort Ord, California.  He remained away for 291 days until returning to military control at Fort Ord on 8 January 1971.  

6.  A DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 23 March 1970 through on or about 8 January 1971.  

6.  On 2 March 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and maximum permissible punishment authorized under the UCMJ, of the possible effects of an Undesirable Discharge (UD) if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this counseling, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  

7.  In his discharge request, the applicant acknowledged that he had been advised of the implications attached to the discharge.  The applicant also indicated he understood if his discharge request were accepted, he could receive an UD and that he had been advised of the possible effects of this type of discharge.  He also stated that he understood he could be deprived of many or all Army benefits, that he could be ineligible for or deprived of 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.  He further acknowledged that he understood he could encounter substantial prejudice in civilian life because of an UD.


8.  On 8 April 1971, the separation authority approved the applicant's request for discharge and directed that he receive an UD and that he be reduced to the lowest enlisted grade.  On 14 April 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged in the rank of private/E-1.  It also shows he completed a total of 1 year, 5 months, and 14 days of creditable active military service and accrued 298 days of time lost due to AWOL.  

10.  On 1 April 1982, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's record, determined that his discharge was proper and equitable and voted to deny the applicant's request for an upgrade of his discharge. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides the authority to separate members who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The separation authority may authorize an HD or GD if warranted by the members overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issue of an UD.

12.  Paragraph 3-7a of the same regulation provides that an HD 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.  Paragraph 3-7b provides that a general, under honorable conditions discharge (GD) 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 contention that his discharge should be upgraded because he had back problems when he entered military service has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant 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 GD or HD by the separation authority at the time of his discharge and it is equally clear it does not support an upgrade now.

4.  Further, the applicant's record contains an SF 88 and SF 89 that were prepared to document his separation physical examination.  These documents 
confirm the applicant was suffering from no disabling physical or mental condition that warranted his separation processing through medical channels.  In addition, the clinical evaluation documents no medical condition and the applicant admitted he was in good health in the medical history form he completed.  As a result, the back injury referred to by the applicant at the time of his entry into military service is not a sufficiently mitigating factor that would support granting the requested relief. 

5.  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)                                         AR20090020861





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ABCMR Record of Proceedings (cont)                                         AR20090020861



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