RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 May 2008
	DOCKET NUMBER:  AR20080001164 


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

2.  The applicant essentially states that he had three younger brothers and his mother out in the street with no place to live.  He also states, in effect, that he came home and found a house with no windows or doors, and had to put the house together so that his family would have a place to live.  He further states that by doing so, he was absent without leave (AWOL), and realizes he made a bad mistake, but that he was a young man who thought he was doing the right thing by helping his family gain a place to stay.

3.  The applicant provides no additional evidence in support of this 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 military records show that he enlisted in the Regular Army on 29 November 1974, and enlisted for the Special Unit Enlistment Option for the 9th Infantry Division at Fort Lewis, Washington.  He completed basic and advanced individual training and was awarded military occupational specialty 16R (Vulcan Crewmember).  He then was reassigned to Fort Lewis, Washington for what would be his first and only permanent duty assignment.

3.  On 3 June 1975, the applicant went AWOL.  On 2 July 1975, he was dropped from the rolls of the Army and classified a deserter, and he remained in this status until he surrendered to military authorities in Kansas City, Missouri on 
26 April 1976.  He was subsequently reassigned to the United States Army Personnel Control Facility at Fort Carson, Colorado.

4.  On 5 May 1976, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about 
3 June 1975, and remaining so absent until on or about 25 April 1976, an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  

5.  On 6 May 1976, a Judge Advocate General's Corps lawyer informed the applicant that he was pending trial by court-martial and, that if convicted, the Manual for Courts-Martial authorized as a part of the punishment for his offense the issuance of a bad conduct or dishonorable discharge.  This lawyer was also informed that the applicant desired to submit a request for discharge for the good of the service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  This lawyer also essentially indicated that before he permitted the applicant to make his request, he wanted to explain to the applicant the provisions of Chapter 10, advise him as to the probable nature and effects of a discharge under this regulation, and advise him of certain rights that he had and could exercise.  

6.  This lawyer wanted to make it clear to the applicant that the Army was not trying to separate him at that point, and that if he did request discharge for the good of the service, it must be his voluntary choice, and that no person could make, force, or coerce him to ask for this discharge.  This lawyer also warned the applicant against widespread rumors that an undesirable discharge could easily be changed to an honorable discharge after his release, or that after a certain time it would automatically become honorable, and that these rumors were totally false.  This lawyer also advised the applicant about the Army Discharge Review Board (ADRB) and the ABCMR, and cautioned him that in 1969, the ABCMR only changed 2.8 percent of the discharges it reviewed, and that statistics were furnished to the applicant so that he would know that if, as was likely, he was issued an undesirable discharge, in all likelihood, that discharge would remain with him for the rest of his life.

7.  Also on 6 May 1976, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10, Army Regulation 
635-200, and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will, and had not been subjected to coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

8.  In his request for discharge, the applicant also acknowledged that he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now named the Department of Veterans Affairs), and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf.

9.  In his statement, the applicant essentially stated that he thought at the time if he had been discharged sooner, it may have prevented him from going AWOL.  He also stated that he had a baby that he liked to take care of, so he liked to go home and get himself on the right track.  He further stated that he completed basic training at Fort Jackson, South Carolina and advanced individual training at Fort Bliss, Texas, but could not remember the date he was assigned to Fort Lewis, Washington.  Additionally, he stated that he went AWOL because he had too many problems, and that his father had a stroke and later a heart attack, and that when he left to see how he was doing, his mother had his three little brothers at home, and was having a hard time with them.  He continued by stating that all of this was on his mind, that he could not think right, so he left to see how his family was doing.  He also stated that he enlisted in the Army because his recruiter only told him what he wanted him to know, but that he came in to better himself.  He further stated that he wanted out of the Army because he could not handle it, and that he would like to try and go home and get a job working as a music man, as he had all of his own equipment.

10.  On 21 May 1976, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.  It was also directed that the applicant be reduced to the lowest enlisted grade effective that date.  On 
14 June 1976, the applicant was discharged accordingly.  

11.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

12.  The applicant essentially stated that he had three younger brothers and his mother out in the street with no place to live.  He also stated, in effect, that he came home and found a house with no windows or doors, and had to put the house together so that his family would have a place to live.  He further stated that by doing so, he was AWOL, and realized he made a bad mistake, but that he was a young man who thought he was doing the right thing by helping his family gain a place to stay.

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 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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge.

2.  The applicant's contention regarding the living conditions of his mother and three younger brothers was considered.  However, as the applicant made no mention whatsoever that his mother and three younger brothers were out in the street with no place to live at the time he elected to submit a statement in his own behalf during his separation processing brings into question the sincerity of the applicant's contention at this time that this was actually the case.  At the time, the applicant essentially stated that he could not handle the Army and wanted to get out for that reason, and that his mother was only having a hard time with his three little brothers by herself because his father had suffered a stroke and a heart attack.

3.  The applicant's contention that he was young at the time of his offense was also considered.  Records show that the applicant was 19 years old at the time he went AWOL, and was 20 years old at the time he voluntarily requested discharge.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  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. 

5.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  Based on the applicant's 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, he is not entitled to either an honorable or general discharge.



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)                                         AR20080001164



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