RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070018012 


	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:




Chairperson



Member



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, in effect, that his undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he was never reprimanded for breaking any rules or laws.  He further states that he thought his discharge would automatically be upgraded after 10 years and did not realize he could request an upgrade.

3.  The applicant provides no additional documentation in support of this case.

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 on 10 October 1973.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 76Y (Supply Specialist).

3.  On 19 April 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 11 April 1974 through 17 April 1974.

4.  On 22 July 1974, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 20 June 1974 through 10 July 1974.

5.  On 16 September 1974, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 5 September 1974 through 6 September 1974.

6.   A DD Form 458 (Charge Sheet), dated 27 May 1975, shows charges were preferred against the applicant for being AWOL for the period 10 April 1975 through 26 May 1975.

7.  On 27 May 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

8.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA); and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

9.  The applicant submitted a statement on his own behalf that stated, in effect, that he was not satisfied with the Army and wanted to see his daughter grow up.  

10.  On 23 June 1975, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 13 August 1975, the applicant was discharged with an undesirable discharge, with service characterized as under other than honorable conditions.  He completed a total of 1 year, 7 months, and 20 days of creditable active service with 74 days of lost time due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 2 February 1982, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable.

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, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.   

13.  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 he was never reprimanded for breaking any rules or laws and that his discharge should be upgraded to a general under honorable conditions discharge.  However, his record shows that he received three Article 15s and had four instances of AWOL during his military service.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general or an honorable discharge.

2.  The applicant’s voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  Evidence of record shows that he understood he could be discharged with an undesirable discharge, characterized as under other than honorable conditions.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __CAD __  __QAS__  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.




      ___          JTM          __
                CHAIRPERSON



ABCMR Record of Proceedings (cont)                                         AR20070018012



5


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508