RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018729 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 general.   

2.  The applicant states, in effect, that he was young and wild.  He does not understand why he got into trouble.  He thought he was helping another person by cashing a check.  Now, he has a problem remembering details and is in need of medical attention.

3.  The applicant provides copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) and three letters of support from his pastor and friends.

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.  On 9 September 1969, the applicant enlisted in the Regular Army for 2 years. He was assigned to Fort Campbell, Kentucky, for basic training. 

3.  On 3 October 1969, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-9, for failure to meet medical procurement standards.  His 25 days of active service were characterized as honorable.

4.  On 31 October 1973, the applicant enlisted in the Regular Army for 2 years.  He was assigned to Fort Leonard Wood, Missouri, for basic training.

5.  On 11 January 1974, the applicant was absent without leave (AWOL).

6.  On 1 August 1974, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period from on or about 11 January 1974 to 22 July 1974 (192 days).

7.  On 6 August 1974, 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 an under other than honorable conditions discharge, 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. 

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 14 August 1974, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 5 September 1974, the applicant was discharged accordingly.  He had completed 3 months and 24 days of creditable active military service during this period and had accrued 192 days of time lost due to being AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  The UCMJ provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

13.  The applicant’s pastor and two friends state in their letters of support that the applicant led a life that was not good for himself and others around him.  He drank, used drugs, fought, and did other bad things.  Then in 2001, the applicant became a member of the church and joined the Big-Brothers Group.  Working with the pastor, he began to change his ways and take notice of how he had treated people and his loved ones.  The applicant is now a deacon.  He is respected and teaches young boys not to go down the road of destruction and death as he had, but rather to get involved with men who could help them achieve their goals in life.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's 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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant's record is devoid of any redeeming service.  

4.  The applicant’s recent good post-service conduct is noted.  However, it does not sufficiently mitigate his act of indiscipline during his military service.

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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LMD__  __JRM___  __JTM __  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.






__          John T. Meixell _______
          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.