IN THE CASE OF: BOARD DATE: 14 April 2009 DOCKET NUMBER: AR20090001417 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, in effect, an upgrade of his undesirable discharge (UD). 2. The applicant states, in effect, that his UD should be changed to reflect the same character of service shown on his discharge certificate. He also indicates that he is trying to receive medical treatment from a Department of Veterans Affairs (VA) medical center. 3. The applicant provides a copy of his discharge order 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 record shows he enlisted into the Regular Army and entered active duty on 12 September 1969, and was trained in and awarded military occupational specialty 11C (Infantry Indirect Fire Crewman). 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to private first class (PFC) on 9 September 1969 and that this is the highest rank he attained while serving on active duty. It also shows that he was reduced on two separate occasions and that he was finally reduced to private (PV1)/E-1 on 28 July 1970. 4. Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date ETS [Expiration Term of Service]) of the applicant’s DA Form 20 and a Fort Campbell Form 1409 (Extract Copy of Enlisted Qualification Record) on file show he accrued 344 days of time lost during three separate periods of being absent without leave (AWOL) and three separate periods of confinement. 5. On 10 November 1969, the applicant accepted of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 3 through 10 November 1969. His punishment for this offense was a reduction to private (PV2)/E-2, a forfeiture of $29.00, and 14 days of restriction and extra duty. 6. A DA Form 20B (Record of Court Martial Conviction Insert Sheet to DA Form 20) shows that on 15 July 1970 a special court-martial found the applicant guilty of violating Article 86 of the UCMJ for being AWOL from 2 February 1970 through 8 June 1970. The resultant sentence was confinement at hard labor for 3 months, forfeiture of $50.00 per month for 3 months, and reduction to PV1. 7. On 16 February 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 12 October 1970 until on or about 19 January 1971. 8. On 1 March 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. 9. In his request for discharge, the applicant acknowledged he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all 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 indicated he understood he could face substantial prejudice in civilian life because of a UD and he elected not to submit a statement in his own behalf. 10. On 19 March 1971, the separation authority approved the applicant’s request for discharge and directed that he receive a UD. 11. On 23 March 1971, Headquarters, United States Army Training Center and Fort Campbell, Fort Campbell, Kentucky, Special Orders Number 74, directed the applicant's UD and that he be issued a DD Form 258A (Undesirable Discharge Certificate). On 29 March 1971, the applicant was discharged accordingly. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed a total of 1 year, 5 months, and 12 days of creditable active military service and accrued 344 days of lost time due to AWOL. 12. The applicant's record is void of any indication that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. The applicant provides a copy of his discharge order. Page one of this order contains a highlighted section that shows a Soldier other than the applicant was authorized to receive an honorable discharge (HD). 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although the separation authority may authorize a general, under honorable conditions discharge (GD) or HD if warranted by the member's record, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions. At the time of the applicant's discharge, the issuance of a UD was authorized. 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. The applicant's contention that his UD should be upgraded to an HD because he was authorized to receive an HD certificate as reflected on his separation orders has been carefully considered. However, the orders referred to contained a list of Soldiers being separated and confirm the applicant was authorized to receive an UD and to be issued a UD Certificate. The highlighted portion of the separation orders provided by the applicant is applicable to a Soldier, other than the applicant, who was authorized to receive an HD. 2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, after consulting with counsel and being advised of his rights and the effects of an UD, voluntarily requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to an offense under the UCMJ that authorized a punitive discharge. All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 3. The evidence of record further shows the applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge. The UD the applicant received was normal and appropriate under the regulatory guidance, and given his extensive disciplinary history, his record of service clearly did not support the issue of a GD or an HD by the separation authority at the time of his discharge, and it does not support an upgrade at this late date. 4. 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) AR20090001417 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001417 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1