RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080001014 


	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 changed to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he received a general discharge but he does not have it in writing.  He states, in effect, that he enlisted as an E-1 but he never received a promotion during his 2 years in the military.  He also states that he acquired the National Defense Service Medal and he qualified as Marksman with the M-16A1 weapon.  

3.  The applicant provides a copy of a letter, dated 5 March 2002, from the 
State of New Jersey, Department of Military and Veterans Affairs, Trenton, New Jersey.

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 24 June 1974 for a period of three years in the rank of private, E-1.  After completion of basic combat training and advanced individual training, he was awarded military occupational specialty 45M (aircraft armament subsystem mechanic).  

3.  On 11 December 1974, the applicant was convicted by a summary 
court-martial, pursuant to his plea, of being absent without leave (AWOL) from 30 September 1974 to 18 November 1974.  He was sentenced to a forfeiture of $100.00 pay for one month.

4.  On 14 March 1975, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being AWOL from 31 January 1975 to 23 February 1975.  His punishment consisted of a forfeiture of $170.00 pay for 2 months; extra duty for 30 days; and restriction for 30 days.
5. He was advanced to private, E-2 on 9 June 1975.  

6.  On 4 August 1975, charges were preferred against the applicant for two specifications of being AWOL from 30 September 1974 to 18 November 1974 and from 23 June 1975 to 28 July 1975.

7.  On 5 August 1975, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs if an undesirable discharge was issued.  He did not submit statements in his own behalf.  

8.  On 5 August 1975, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.  The applicant was reduced to the lowest rank of private, E-1.

9.  On 29 August 1975, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 11 months and 10 days of active military service with 109 days of lost time due to AWOL.  His DD Form 214 shows he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

10.  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 an undesirable discharge.

11.  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.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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 applicant's record of service shows he received a summary court-martial and one Article 15 for being AWOL for a total of 73 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to a general discharge.

3.  The applicant’s statements are noted.  However, there is insufficient evidence to substantiate the applicant's claims that he received a general discharge or that the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to general under honorable conditions.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM______  CD______  QS______  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.




                        JM__________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001014


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