IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020966 


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 to a general discharge.

2.  The applicant states he was home on leave due to his brother's illness at the time.  He called for an extension but he was denied, so he decided to stay home to help his family with his brother's hospitalization.  His brother ultimately passed away and the economic situation was not very good at home.  He returned to military control in an attempt to straighten things out; however, he was arrested and charged with being absent without leave (AWOL).  His military service had been honorable until he was forced by the circumstances to choose between his military service and his family.  He chose his family, but he does not believe he should have received an undesirable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 records show he enlisted in the Regular Army for a period of 3 years on 13 February 1969.  He completed basic combat training at Fort Lewis, WA and proceeded to Fort Rucker, AL for completion of advanced individual training.

3.  While at Fort Rucker he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 27 May 1969, for stealing a cigarette lighter and a wallet from another Soldier.  His punishment consisted of a forfeiture of $20.00 pay and 14 days of extra duty and restriction.

	b.  On 23 June 1969, for being AWOL during the period on or about 18 June 1969 through on or about 21 June 1969 and failing to maintain his military uniform on or about 23 June 1969.  His punishment consisted of a forfeiture of $25.00 pay and 14 days of extra duty and restriction.

	c.  On 2 July 1969, for three instances of absenting himself from his appointed place of duty on or about 29 and 30 June 1969.  His punishment consisted of a reduction to private (PV1)/E-1, a detention of $61.00 pay per month for 2 months, and 45 days of extra duty and restriction.

	d.  On 13 August 1969, for being AWOL during the period on or about 3 August 1969 through on or about 6 August 1969.  His punishment consisted of a forfeiture of $50.00 pay per months for 2 months.

4.  On 3 October 1969, he pled guilty at a special court-martial to one specification of unlawfully receiving a stolen car on or about 24 July 1969.  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $50.00 pay per month for 4 months.

5.  On 15 October 1969, the convening authority approved the sentence but suspended 2 months of his 4-month adjudged sentence to confinement at hard labor for 4 months.  Furthermore, on 14 November 1969, the unexecuted portion was suspended.

6.  In February 1970, he was reassigned to Fort Clayton, Panama, in military occupational specialty 57A (Duty Soldier).  While there, he accepted NJP under the provisions of the UCMJ as follows:

	a.  On 25 June 1970, for absenting himself from his appointed place of duty and disobeying a lawful order.  His punishment consisted of a forfeiture of $28.00 pay and 14 days of extra duty and restriction.

	b.  On 27 August 1970, for misappropriating government property and being apprehended for a pass violation on or about 26 August 1970.  His punishment   consisted of a forfeiture of $32.70 pay, a reduction to PV1/E-1, and 14 days of extra duty and restriction.

	c.  On 5 January 1971, for absenting himself from his appointed place of duty on or about 2 January 1971.  His punishment consisted of a forfeiture of $28.00 pay.

7.  On 23 September 1971, he departed his unit in an AWOL status.  He was subsequently dropped from the rolls (DFR) of the Army on the same day.  He remained in this status until he surrendered to his unit on 29 November 1971.

8.  On 22 December 1971, court-martial charges were preferred against him for one specification of being AWOL during the period on or about 23 September 1971 through on or about 29 November 1971.

9.  On 24 January 1972, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

10.  In his request for discharge, he indicated that he had not been subjected to coercion with respect to his request for discharge.  He also acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could expect to encounter substantial prejudice in civilian life, 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 law.  He further elected not to submit a statement in his own behalf.

11.  His immediate, intermediate, and senior commanders recommended approval of his discharge with an Undesirable Discharge Certificate.

12.  On 29 February 1972, the separation authority approved the applicant's request for discharge for the good of the service - in lieu of court-martial in accordance with Army Regulation 635-200, chapter 10.  He directed the applicant receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 8 March 1972, he was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he had completed a total of
2 years, 9 months, and 2 days of creditable active military service and had 113 days of time lost.

13.  On 24 May 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  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.

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 contends that his discharge should be upgraded.

2.  The evidence of record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He consulted with counsel and he was advised of the contemplated trial by court-martial for his offense.  Only then did he voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His service in Panama and the difficulties with respect to his brother and his family are noted.  However, there were many other avenues to resolve those issues had he elected to use them.  There is no evidence in the available records, nor did he provide documentation, that would warrant an upgrade of his discharge.  In order to justify correction of a military record he must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit evidence that would satisfy that requirement.

4.   Based on his overall record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

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)                                         AR20090020966



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020966



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1