RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  26 February 2008
	DOCKET NUMBER:  AR20070015972 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. John G. Heck

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge.

2.  The applicant states, in effect, that he was very close to finishing his 4-year [sic] term of enlistment commitment when he went into an absent without leave (AWOL) status. Upon his return, he was offered an undesirable discharge.  He further adds that he was young at the time and wanted to go home.  Now, he is 57 years old and has been recently deemed disabled and would like to have his discharge upgraded in order to qualify for Veterans Administration (VA) benefits.

3.  The applicant did not provide any additional 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's records show that he enlisted in the Regular Army on 3 November 1967 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained during his military service was specialist private first class (PFC)/E-3.

3.  The applicant's records show that he was awarded the Armed Forces Expeditionary Medal (Korea) and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:
	a.  on 8 April 1968, for violating a lawful military regulation, on or about 7 April 1968.  His punishment consisted of reduction to the grade of private/E-2, 14 days of extra duty, 14 days of restriction, and forfeiture of $26.00 pay for one month.

	b.  on 10 December 1968, for refusing to cooperate with the Military Police and consequently being placed under apprehension, on or about 16 November 1968.  His punishment consisted of an oral reprimand. 

c.  on 3 February 1969, for failing to go to his appointed place of duty on or about 26 January 1969.  His punishment consisted of a forfeiture of $28.00 pay for one month, reduction to the grade of private/E-3, 14 days of restriction, and 14 days of extra duty.

5.  On 25 November 1969, the applicant pled guilty at a Special Court-Martial for one specification of being AWOL during the period on or about 2 June 1969 through on or about 4 August 1969.  The Court sentenced him to a forfeiture of $40.00 pay for two months and confinement at hard labor for 45 days (suspended until 15 January 1970). 

6.  On 15 September 1970, Court-Martial charges were preferred against the applicant for being AWOL during the period on or about 3 February 1970 through on or about 15 September 1970.  

7.  On 15 September 1970, 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 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).

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

9.  On 28 September 1970, the applicant's immediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  The immediate commander remarked that a careful review of the applicant's records in conjunction with his negative attitude toward honorable service indicated that the best interests of the Army would be served with an approval of the request for discharge. 

10.  On 5 October 1970, the intermediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  

11.  On 7 October 1970, 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 and be reduced to private/E-1.  Accordingly, the applicant was discharged on 20 October 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time of his discharge shows that he was discharged for the good of the service with an Under Conditions Other Than Honorable character of service.  This form further confirms the applicant had completed a total of 2 years, 10 months, and 8 days of creditable active military service and had 224 days of lost time due to AWOL.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 

13.  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.

14.  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.

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 contends that his discharge should be upgraded.

2.  Evidence of record shows that the applicant was 17 years of age at the time of his enlistment and 19 to 20 years of age at the time of his offense.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The applicant voluntarily requested discharge from the Army under the provisions of chapter 10, Army Regulation 635-200 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.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on the applicant’s repeated record of indiscipline, the applicant's 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 or an honorable discharge.

5.  The Army Board for Correction of Military Records (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, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __lmd___  __jgh___  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.



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.