IN THE CASE OF: BOARD DATE: 16 July 2009 DOCKET NUMBER: AR20090004320 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, that his undesirable discharge be upgraded to an honorable discharge for the convenience of the government. 2. The applicant states that he was neither charged nor convicted by a court-martial and that he accepted nonjudicial punishment in only one instance. He adds that his discharge exceeds company level punishment. He also adds that he is in need of Department of Veterans Affairs (VA) medical benefits. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 3 August 1973, 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 records show he enlisted in the Regular Army for a period of 3 years on 6 July 1971. He completed basic combat and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Crewmember). The highest rank/grade the applicant attained during his military service was private first class/E-3. 3. The applicant's records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar. 4. On 1 November 1972, the applicant departed his unit in an absent without leave (AWOL) status and he was subsequently dropped from the rolls of the Army on 1 December 1972. He surrendered to military authorities at Fort Sam Houston, TX, on 9 July 1973. 5. On 11 July 1973, court-martial charges were preferred against the applicant for one specification of being AWOL from 1 December 1972 through 9 July 1973. 6. On 13 July 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions; the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ); the possible effects of a request for discharge; and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations). 7. In his request for discharge, the applicant acknowledged he understood that if the 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 8. On 19 and 20 July 1973, the applicant’s immediate and intermediate commanders recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate. 9. On 31 July 1973, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate. 10. On 3 August 1973, the applicant was discharged accordingly. The DD Form 214 he was issued shows he was discharged for the good of the service with a character of service of under other than honorable conditions. This form further confirms he completed a total of 1 year, 4 months, and 19 days of creditable active military service and he had 252 days of lost time. 11. There is no evidence in the applicant’s records that indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. 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, an undesirable discharge was considered appropriate at the time. 13. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 14. 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 contends that his undesirable discharge should be upgraded to an honorable discharge for the convenience of the government. 2. The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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. The applicant’s narrative reason for discharge is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service. 3. There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. 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 did not submit evidence that would satisfy this requirement. 4. Based on the applicant’s record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either a general discharge, under honorable conditions, or an honorable discharge. The applicant’s narrative reason for discharge is also appropriate. 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) AR20090004320 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004320 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1