RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070016745 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 that his Undesirable Discharge (UD) be upgraded to a General Discharge (GD) under honorable conditions.

2.  The applicant states he joined the Army because he was homeless.  When he enlisted, he was addicted to alcohol and drugs, and was suffering from depression.  Although he drank constantly, he completed Basic Combat Training (BCT) with a very good record.  After he was reassigned to Fort Belvoir, VA for Advanced Individual Training (AIT), he went AWOL (absent without leave) and went "home."  He repeated this AWOL behavior several times and ended up in the Stockade.  He was given a UD.

3.  Following his discharge, the applicant states his life became worse; he was divorced, he lost a great job, and he went into debt.  Finally in 1987, he entered a residential treatment center for alcohol and drug abuse.  He cleaned himself up and became a counselor at the treatment center.  He obtained an undergraduate degree and a Masters in Social Work degree, and he works with at-risk teens.  He remarried and has an adopted child.  He also has reestablished a relationship with his daughter from his first marriage.

4.  The applicant asks, in effect, that his post-service conduct be considered in granting an upgrade of his discharge.  He has overcome his addictions; he has educated himself; and he is giving back to his community through his work in social services.

5.  The applicant provides only a self-authored letter 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 enlisted in the Regular Army for 3 years on 29 March 1972.  He completed BCT at Fort Dix, NJ and was transferred to Fort Belvoir, VA for AIT.  He arrived at Fort Belvoir on/about 9 June 1972 and went AWOL on 11 June 1972, remaining absent through 18 July 1972.

3.  The applicant returned to military control on/about 19 July 1972 at Fort Dix and was assigned to the Personnel Control Facility.  He again went AWOL on 22 July 1972 and remained absent through18 October 1972 when he once again returned to Fort Dix.  On 27 October 1972, the applicant was convicted by a summary court-martial for these two period of AWOL.

4.  The applicant had two additional periods of AWOL, from 21 November 1972 through 8 January 1973, and from 12 January 1973 through 30 April 1973.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for the 21 November 1972 – 8 January 1973 AWOL.

5.  On 3 May 1973, court-martial charges were preferred against the applicant for his period of AWOL from 12 January – 30 April 1973.  He was afforded legal counsel and, on 7 May 1973, he 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.

6.  On an unknown date, the Commanding General of Fort Dix approved the applicant's request for a chapter 10 discharge and directed he be issued a UD.  On 13 June 1973, he was discharged with a UD.  He had 5 months and 3 days of creditable service and 281 days of lost time.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case in a personal appearance hearing on 9 January 1975, denied his request.

8.  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 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of a UD.


DISCUSSION AND CONCLUSIONS:

1.  The applicant has requested a discharge upgrade because, at the time of his service, he was addicted to alcohol and drugs, and because subsequent to his discharge, he has turned his life around.  He cites his education and his work with at-risk teens – in effect, post-service conduct and achievement – yet he provides no evidence in support of these achievements.

2.  The applicant had 281 days of lost time due to AWOL.  At the time of his discharge, he offered no good explanation for his misconduct.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The applicant appeared before the ADRB in January 1975 in an attempt to upgrade his discharge.  After listening to his explanation, that board voted to deny 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

__xxx___  __xxx___  __xxx___  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.




							XXX
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070016745



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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