BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021753 


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.  He also requests correction of item 17a (Secondary Specialty Number and Title) of his DD Form 214 (Report of Separation from Active Duty) for the period ending 15 March 1976 to show military occupational specialty (MOS) 94B2P (cook).  He also requests a copy of his Culinary Art Certificate from Fort Jackson, SC.

2.  The applicant states:

* he was an outstanding Soldier
* after his reenlistment a family member became ill and he was needed at home
* he requested leave but his request was denied
* he made specialist four (SP4)/E-4 in 21 months
* he was an expert rifleman and grenadier
* he went to jump school and he qualified with the M113A1 armored personnel carrier
* clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge
* his discharge should be upgraded because personal problems impaired his ability to serve
* since his discharge he has led a productive life 


3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army (RA) on 21 December 1972 for a period of 3 years.  He successfully completed basic combat, advanced individual, and basic airborne training.  He was awarded MOS 11B (light weapons infantryman).  He was advanced to SP4/E-4 on 1 July 1974.  On 29 September 1974, he was honorably discharged for immediate reenlistment.  He reenlisted on 30 September 1974 for a period of 6 years.

3.  On 28 February 1975, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order, breaking restriction, and failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of correctional custody (suspended), a reduction to private (PV2)/E-2, and a forfeiture of pay.  On 11 March 1975, the suspension of the punishment of correctional custody was vacated.

4.  On 19 May 1975, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private (PV1)/E-1 (suspended), a forfeiture of pay (suspended), and extra duty.  On 27 May 1975, the suspension of the punishment of forfeiture of pay was vacated.

5.  The applicant went absent without leave (AWOL):

* from 2 July 1975 to 3 July 1975
* from 8 July 1975 to 18 July 1975
* from 24 July 1975 to 7 August 1975
* from 7 August 1975 to 9 October 1975

6.  On 20 October 1975, charges were preferred against the applicant.  Trial by special court-martial was recommended.

7.  On 5 November 1975, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  On 15 December 1975, he stated:

* due to a medical problem he was unable to meet his service obligation
* he did not deserve a bad discharge just because he made one mistake
* he had an honorable discharge 

8.  On 17 November 1975, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile containing no physical limitations.  On 17 November 1975, he underwent a mental status evaluation and he was found to be mentally responsible.

9.  On 30 December 1975, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 
15 March 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He had served a total of 2 years, 11 months, and 27 days of creditable active service with 88 days of time lost.

11.  Item 17a of the applicant's DD Form 214 for the period ending 15 March 1976 shows the entry "DNA" [presumably it means data not available].

12.  There is no evidence in the available records which shows the applicant was awarded a secondary MOS of 94B2P.  His records also do not contain a Culinary Arts Certificate.

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

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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to 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.  Although the applicant now contends personal problems impaired his ability to serve, the evidence of record shows that on 15 December 1975 he indicated he was unable to meet his service obligation due to a medical problem.  However, prior to his discharge, his separation medical examination found him qualified for separation with no physical limitations.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, was administratively correct and in conformance with applicable regulations.


4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant’s entire record of service and military accomplishments, including his prior honorable discharge, were carefully considered.  However, his record of service during his last enlistment included two NJP's and 88 days of time lost due to AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

6.  There is no evidence of record, and the applicant provided no evidence, which shows he was awarded a secondary MOS of 94B2P.  Therefore, there is insufficient evidence in which to amend block 17a on his DD Form 214 for the period ending 15 March 1976.  His records also do not contain a Culinary Arts Certificate.

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)                                         AR20090021753



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ABCMR Record of Proceedings (cont)                                         AR20090021753



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