IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20090001877 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 that his discharge with service characterized as under other than honorable conditions (in effect, undesirable discharge) be upgraded to an honorable discharge. 2. The applicant states, in effect, that at the time of his discharge he was told by an officer that an under other than honorable conditions discharge would automatically be changed to a honorable discharge after six months. His records were not changed after six months. 3. In support of his request, the applicant provides an addendum to his DD Form 149 (Application for Correction of Military Record), a copy of a DD Form 214 (Armed Forces of the United States, Report of Transfer or Discharge) with an effective date of 30 March 1969, and a copy of a DD Form 214 with an effective date of 20 April 1972. 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 on 19 March 1968. He completed basic combat training at Fort Bragg, North Carolina, and advanced individual training at Fort Jackson, South Carolina. On completion of his training, he was awarded military occupational specialty (MOS) 36K (Field Wireman). 3. The applicant's records show the highest rank and pay grade he held on active duty was Specialist Four, E-4, effective on 29 March 1969. The applicant’s records contain no documented acts of valor, achievement, or service warranting special recognition. 4. Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]), of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave for the following periods: on 13 July 1970 (1 day), on 15 July 1970 and 16 July 1970 (2 days), from 20 July to 27 July 1970 (8 days), from 16 November 1970 to 25 February 1971 (102 days), from 28 February to 25 May 1971 (87 days), from 26 May to 14 June 1971 (20 days), from 15 June 1971 to 2 March 1972 (229 days), and he was confined from 2 March to 16 March 1972 (14 days). 5. On 18 August 1970, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority on 13 July 1970 and remaining so absent until 14 July 1970, for absenting himself without authority on 15 July 1970 and remaining so absent until 17 July 1970, and for absenting himself without authority on 20 July 1970 and remaining so absent until 28 July 1970. The imposed punishment was a forfeiture of $35.00 pay per month for two months and a reduction to the rank of private first class, E-3. The applicant did not appeal the punishment. 6. On 8 October 1970, the applicant received nonjudicial punishment under the provisions of the UCMJ for failing to go to his prescribed place of duty at 0700 hour and at 1230 hours on 7 October 1970. The imposed punishment was a reduction to private, E-2 (suspended for 60 days), and extra duty for 14 days. The applicant did not appeal the punishment. 7. On 3 March 1972, a DD Form 458 (Charge Sheet) was completed and court-martial charges were brought against the applicant for being absent without leave from 16 November 1970 until 26 May 1971 [the charge sheet also included a charge of the applicant's violation of Article 85 (Desertion) in that it was believed he had remained absent from his unit after 28 February 1971 with the intent of remaining away from his unit permanently], and for escaping from lawful confinement (Fort Gordon Stockade, Fort Gordon, Georgia) on 15 June 1971. 8. On 7 March 1972, the applicant voluntarily submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. In his request, the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ which could authorize the imposition of a bad conduct or dishonorable discharge. He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person. The applicant stated he had been advised of the implications that were attached to his request. 9. The applicant acknowledged he understood that if his request were accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He understood that as a result of issuance of such a discharge, he could be deprived of all benefits administered by the Veterans Administration [now the Department of Veterans Affairs] and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 10. The applicant stated that prior to completing his request for discharge for the good of the service he had been afforded the opportunity to consult with appointed counsel or counsel of his own choice. On the same date, the applicant received counseling by a captain assigned to the Judge Advocate General Corps. He was advised of the basis for the contemplated trial by court-martial and 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 available to him. He acknowledged that the decision to submit a request for discharge for the good of the service was his own. 11. The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge. The applicant indicated he wished to submit a statement. In his statement, the applicant indicated, in effect, that his wife was pregnant and the doctor's bill was going to run him about $500.00. He said he had other bills and he would like to keep up the payments so as to keep his credit good. He had been offered a good job but he was unable to take it because he was absent without leave. The job was hauling bulk mail but he had to be screened through the post office department and he could not do that. He was told to get straight with the Army and the job would be waiting for him when he got out. He would be making $150.00 per week and that is the best he could make with a bad discharge from the Army. His father was on total disability and he was drawing about $90.00 per month from Social Security. He was helping them out the best he could. His mother was unable to work. He was the only one at home at the time who could help. His brother was 17 years of age and it was hard for him to find a job. So, if he could get home and get that job, he could save enough money by the time the baby was born. Plus, he could get his parents back on their feet. He knew he would not ever have much but being a free man was a lot and a big start. So, he hoped for understanding and the help he needed. 12. The applicant's request for discharge was approved on 10 April 1972 by the appropriate authority, the Commander, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia. In his approval, the appropriate authority directed the issuance of an undesirable discharge and that the applicant be reduced to the lowest enlisted pay grade. 13. The applicant was discharged with an undesirable discharge with his service characterized as under other than honorable conditions on 20 April 1972. He was discharge in the rank and pay grade of private/E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. On the date of his discharge, the applicant had completed a total of 2 years, 9 months, and 6 days of total active military service with 483 days of lost time. 14. There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 15. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the 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 could submit, at any time after the charges had been preferred, a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper. 16. 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. 17. 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 separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. 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. 2 The Army does not have, nor has it ever had, a policy to automatically upgrade discharges. 3. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. The applicant's record does reveal an extensive history of misconduct which included absenting himself without authority several times, which included a charge of desertion; failing to go to his prescribed place of duty; and escaping from lawful confinement from the stockade. At the time of the applicant's discharge, he had accumulated a total of 483 days of lost time. 4. The applicant’s separation document shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial. In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 5. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. An undesirable discharge was normal and appropriate under the regulatory guidance at the time of the applicant's discharge and his overall record of service clearly did not support the issuance of a general, under honorable conditions, discharge or a fully honorable discharge. 6. In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge, with his service characterized as under other than honorable conditions, to a general, under honorable conditions, or to a fully honorable 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) AR20090001877 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001877 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1