IN THE CASE OF:	

		BOARD DATE:	  08 June 2010

		DOCKET NUMBER:  AR20090021481 


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 an honorable discharge.

2.  The applicant states, in effect, the presumption of regularity that may normally permit the Board to assume the Army acted properly in characterizing his service does not apply for the following reasons:

	a.  he feels it is an injustice for him to continue suffering the adverse consequences of a bad discharge;

	b.  he believes under current Army standards he would not have received the same discharge;

	c.  he had average conduct and efficiency scores and good proficiency scores;

	d.  his record of promotions shows he was a good Soldier;

	e.  he has been a good citizen since his discharge;

	f.  his record of punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) and being absent without leave (AWOL) are minor or isolated offenses;

	g.  his youth and immaturity, personal problems to include teenage fatherhood responsibilities, low educational aptitude scores, and his psychiatric problems impaired his ability to serve at the beginning of his enlistment; and

	h.  he faced racial discrimination.

3.  The applicant provides the following documents in support of his application:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge);

	b.  DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 16 December 1971, and related enlistment documents; 

	c.  DA Form 20 (Enlisted Qualification Record) signed by the applicant on 26 January 1973;

	d.  miscellaneous military medical documents; and

	e.  a newspaper photograph showing a group of Veterans honoring the fallen with a memorial wreath. 

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, a minor with the written consent of his parents, enlisted in the Regular Army on 16 December 1971 for a 3-year period.  Upon entrance into the Army he had completed the tenth grade and his General Education Development (GED) average standard score was 36.2 percent.  His general mathematical ability, reading, social studies, and correctness and effectiveness of expression all ranked in the seventh percentile of the United States.  He did not complete advanced individual training.  
3.  The applicant's official military personnel file (OMPF) contains the following disciplinary records:

	a.  Summary Court-Martial Order Number 82, dated 10 May 1972, shows he pled and was found guilty of two specifications of failure to obey a lawful order of a noncommissioned officer (NCO) and of being disrespectful towards an NCO.  His sentence consisted of confinement at hard labor for 30 days and a forfeiture of $190 pay.

	b.  acceptance of nonjudicial punishment on 27 January 1972 for abandoning his guard post; and on 31 March 1972 for dereliction of his duties and failure to obey a lawful order of an NCO.  He appealed the 31 March 1972 Article 15 punishment which consisted of $45 pay.  He stated he felt he was unjustly issued this Article 15 and that he was not treated fairly or equally.  He asked for a chance to defend himself.  On 5 April 1972, the appropriate authority denied the applicant's appeal. 

4.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows his only appointment was in the rank and grade of private/pay grade E-1.  

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows during his basic combat training phase his conduct and efficiency ratings were "excellent."  However, when in advanced individual training, his conduct was rated "unsatisfactory" and his efficiency was rated "good."  On 3 May 1972, both his conduct and efficiency ratings were "unsatisfactory." 

6.  On 6 June 1972, the applicant went AWOL while in a trainee status from his unit at Fort Sam Houston, TX.  

7.  The applicant surrendered to military authorities on 16 January 1973 at Fort Sheridan, IL.  The reason cited for going AWOL was documented in the OMPF as personal problems and fighting within his military unit.  When questioned, he stated he had asked his chain of command for a transfer to another unit, but no one listened.  He asked the military authority to transfer him to a new unit and not send him back to his old unit at Fort Sam Houston.   

8.  The applicant's separation packet and the complete facts and circumstances pertaining to his discharge are not available for the Board's review.  However, his records contain a duly-constituted DD Form 214 issued on 7 March 1973.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of court-martial.  He completed 6 months and 18 days of creditable active service with 248 days of lost time under the provisions of Title 10, U.S. Code, Section 972 for the periods from 3 through 25 May 1972 and again from 6 June 1972 through 16 January 1973.

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

10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offense chargeable under the UCMJ.  A punitive discharge (Dishonorable Discharge or Bad Conduct Discharge) is authorized for an AWOL offense of 30 days or more.  Additionally, the maximum punishment for AWOL includes confinement of 12 to 18 months and a forfeiture of all pay and allowances. 

	b.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's discharge, Soldiers were issued an undesirable discharge. 

	c.  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.

	d.  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.

	e.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  That the applicant's youth, immaturity, low aptitude scores, and teenage parenthood could have contributed to his poor judgment that led to his discharge is acknowledged.  However, the applicant committed a violation punishable under the UCMJ.  He went AWOL for a period far in excess of 
30 days.  

2.  Upon his return to military control, he would have been charged for violation of Article 86 of the UCMJ for his extended AWOL period.  Had he gone to trial by court-martial, the maximum punishment could have included confinement for up to 18 months and a dishonorable discharge.  A record of AWOL is not a minor offense as he purports.  A federal conviction by court-martial would have given the applicant a federal criminal record.  

3.  Although the applicant's separation packet was not available for review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily and in writing request a discharge from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

4.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  The type of discharge and the reason for discharge are appropriate considering the known facts of this case.  If the applicant felt that he was innocent of the charges he should have pursued a trial by court-martial.

5.  The applicant argues in his application that he generally was a good Soldier and that his record of promotions supports his statement.  Evidence contradicts the applicant's argument for leniency.  The facts show the applicant's conduct and efficiency ratings were "unsatisfactory" after he completed basic combat training.  In addition, he was never promoted as he purports.  

6.  The applicant stated that he was discriminated against based on his race; however, he provided no evidence of racial discrimination.  Therefore, his claim cannot be substantiated.

7.  While the applicant states he has been a good citizen since his discharge, it is not sufficient to warrant upgrading a properly-issued discharge.

8.  In order to justify correction of a military record, the applicant must show 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.

9.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's discharge characterization of service.

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)                                         AR20090021481



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021481



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1