IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100014381 


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 discharge.

2.  The applicant states that he was unjustly and erroneously accused of a crime he did not commit.  He adds that the charges were fully investigated. 

3.  The applicant provides no additional documents 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 military personnel records show he was inducted into the Army of the United States on 1 May 1968.  He did not complete basic combat or advanced individual training.  The highest grade he attained was pay grade E-2. 

3.  On 27 February 1969, the applicant received nonjudicial punishment for being absent without leave (AWOL) from 4 December 1968 to 20 January 1969.  His imposed punishment was a forfeiture of $20.00 pay for 2 months.

4.  On 12 May 1969, the applicant was convicted by a special court-martial (SPCM) of being AWOL from 15 March to 28 April 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $46.00 pay per month for 6 months.  

5.  On 11 August 1969, the applicant was convicted by an SPCM of unlawful assembly participating in a riot for the purpose of committing a tumultuous disturbance of the peace and disrupting the standard operating procedures of the post stockade and for the destruction of government property by purposely setting fires within the stockade.  He was sentenced to confinement at hard labor for 6 months.  

6.  On 4 March 1970, court-martial charges were preferred against the applicant for being AWOL from 8 January to 27 February 1970.

7.  On an unknown date, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service.  The applicant acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will

* afforded the opportunity to speak with counsel prior to making this request

   * advised he may be furnished an under other than honorable conditions discharge

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he: 

* would be deprived of many or all Army benefits

* may be ineligible for many or all Veterans Administration (VA) benefits

* understood the procedures and rights available to him

* did not submit a statement in his behalf
9.  On 9 March 1970, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the applicant be furnished an Undesirable Discharge Certificate.

10.  On 1 April 1970, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an Undesirable Discharge Certificate.  He had completed 1 year and 27 days of net active service and 308 days of time lost due to AWOL and confinement.

11.  On 4 August 1981, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, states 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 contentions that he was accused of a crime that he did not commit was carefully considered, however, there is no evidence and the applicant has not provided any evidence that shows that the discharge he received was inequitable or unjust.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His undesirable discharge was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20100014381



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ABCMR Record of Proceedings (cont)                                         AR20100014381



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