RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080001723 


	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 that his undesirable discharge be upgraded to a more favorable discharge that will qualify him for health benefits. 

2.  The applicant states that he was not aware of the type of discharge he was receiving.  He just wanted out of the Army and his commander advised him to take the Chapter 10.  He is now seeking health benefits and desires his discharge to be upgraded. 

3.  The applicant provides no additional documents with 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 on 3 February 1969 for a period of 3 years and training in the aircraft maintenance career management field.  He completed his basic training at Fort Gordon, Georgia and was transferred to Fort Rucker, Alabama to undergo his advanced individual training (AIT). 

3.  On 19 June 1969, while still in AIT, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.   

4.  He completed his AIT and was transferred to Korea on 18 August 1969 and served until he was transferred to the Medical Holding Company at Fort Gordon, Georgia, for drug-related treatment on 5 September 1970.  On 10 November 1970, he was transferred to Fort Hood, Texas.  


5.  On 10 December 1970, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer and for being absent from his place of duty.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty, and restriction.  

6.  On 26 February 1971, NJP was imposed against him for being absent without leave (AWOL) from 22 February to 23 February 1971.  His punishment consisted of a forfeiture of pay, extra duty, and restriction. 

7.  On 15 March 1971, the applicant went AWOL and remained absent until he was returned to military control on 14 April 1971.

8.  On 15 April 1971, charges were preferred against the applicant for being AWOL from 15 March to 14 April 1971 and for failure to go to his place of duty on 15 April 1971.

9.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request he stated that he understood that he may be discharged with an undesirable discharge, that he understood the prejudice he may be subjected to as a result of such a discharge, that he understood that he would be deprived of many or all benefits and that he was not subjected to coercion by anyone to submit such a request.  He also elected not to submit a statement in his own behalf.

10.  The appropriate authority (a major general) approved his request on 10 May 1971 and directed that he be furnished an Undesirable Discharge Certificate.

11.  Accordingly, the applicant was discharged with an undesirable discharge on 26 May 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 2 months, and 19 days of total active service and had 35 days of lost time due to AWOL.

12.  The applicant was also notified in writing on 26 May 1971 of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and the applicant acknowledged by his signature that he understood the procedures and that he had been provided a copy of the notification.  However, there is no evidence in the available records to show that he ever applied to the ADRB within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  An undesirable discharge is normally considered appropriate.  There have never been any provisions for an automatic upgrade of such discharges.

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 courtmartial, was administratively correct and in conformance with applicable regulations.  There were no violations of any of the applicant’s rights and his discharge appropriately characterizes his overall record of service.
 
2.  The applicant’s contentions have been noted and found to lack merit.  The applicant’s request for discharge specifically stated that he understood the type of discharge he would receive and the ramifications attached to such a discharge.  Accordingly, his argument is not sufficiently mitigating to warrant relief when compared to his undistinguished record of service.  His service simply does not rise to the level of a discharge under honorable conditions.  

3.  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)                                         AR20080001723



4


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