IN THE CASE OF:	

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021654 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he is a minister of God and has been a pillar of his community in helping anyone.  He also supports the United States government.

3.  The applicant provides the following documents:

* Certificate of marriage
* Certificate of Ordination as a Deacon
* Three Mid-Florida Technical Institute certificates of training
* Three certificates of completion for miscellaneous training
* Six letters of achievement/commendation
* Two certificates of appreciation

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 enlisted in U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 14 March 1974 for a period of 6 years.  On 1 April 1974, he was discharged from the USAR DEP and on 2 April 1974, he enlisted in the Regular Army for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  A DD Form 458 (Charge Sheet) shows the applicant was charged with two violations of the Uniform Code of Military Justice (UCMJ):

* Charge I.  Two offenses of Violation of Article 86 - 
o   on or about 26 April 1975, for failing to go at the time prescribed to his appointed place of duty (hard labor detail)
o   on or about 27 April 1975, for failing to go at the time prescribed to his appointed place of duty (hard labor detail)

* Charge II:  Two counts of Violation of Article 91 – 
o   on or about 25 April 1975, disobey a lawful order from his superior noncommissioned officer
o   on or about 26 April 1975, disobey a lawful order from his superior 
noncommissioned officer

4.  The applicant was placed in pre-trial confinement on 28 April 1975.  On 6 May 1975, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to submitting his request, 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, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  The applicant was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that he would not be submitting any statements with his request.

5.  In his voluntary request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request was approved, 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 law.

6.  On 12 May 1975, the applicant received a complete physical and mental examination.  The medical officer found him physically and mentally fit for duty and responsible for his actions.  He deemed he was able to understand and participate in board proceedings.
  
7.  On 20 May 1975, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 12 June 1975, the applicant was discharged accordingly.

8.  The DD Form 214 (Report of  Separation from Active Duty) issued to the applicant at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  He had completed 1 year, 2 months, and 11 days of total active service with no time lost.

9.  On 25 August 1976, the Army Discharge Review Board (ADRB), after careful review of the applicant's military records and all other available evidence, determined the applicant was properly and equitably discharged.  Accordingly, the ADRB denied the applicant's request for an upgrade of his discharge.

10.  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.  

11.  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's contention that his undesirable discharge should be upgraded to a general discharge was carefully considered and found not to be supported by the evidence.

2.  The applicant's post-service conduct and performance is commendable; however, based on the applicant's disciplinary record as shown on his DD
Form 458, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests 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.  There is no evidence of an error or injustice on the part of the Army.  Therefore, the applicant is not entitled to a general discharge.

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)                                         AR20090021654



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ABCMR Record of Proceedings (cont)                                         AR20090021654



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