RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080002150 


	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 an upgrade of his discharge. 

2.  The applicant states that he could not adjust to military life and that the Army gave him a dishonorable discharge [sic], which is not correct.  He further adds that his service records should reveal that he was discharged with an undesirable discharge, under medical conditions; not a dishonorable discharge [sic].

3.  The applicant did not provide any additional documentary evidence in support of 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's records show that he enlisted in the Regular Army for a period of 2 years on 26 September 1972.  He reported to Fort Jackson, South Carolina, to attend basic combat training (BCT) on 2 October 1972.

3.  On 1 November 1972, he departed his BCT unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls (DFR) of the Army on 30 November 1972.  He surrendered to military authorities in Huntington, West Virginia, and was returned to Fort Jackson, South Carolina, on 7 December 1972. 

4.  On 13 December 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period from on or about 1 November 1972 through on or about 7 December 1972.  His punishment consisted of forfeiture of $100.00 pay per month for two months, 14 days of extra duty, and 14 days of restriction.

5.  On 8 January 1973, he departed his BCT unit in an AWOL status again.  He returned to his unit on 16 January 1973.

6.  On 27 January 1973, he departed his BCT unit in an AWOL status for the third time.  He surrendered to military authorities at Fort Jackson, South Carolina, on 17 February 1973

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the applicant DA Form 20 (Enlisted Qualification Record) shows that he was reported AWOL during the periods 1 November 1972 to 6 December 1972; 8 January 1973 to 16 January 1973; and 27 January 1973 to 16 February 1973.

8.  On 20 February 1973, Court-Martial charges were preferred against the applicant for two specifications of being AWOL during the periods from on or about 8 January 1973 through on or about 17 January 1973 and from on or about 27 January 1973 through on or about 17 February 1973.

9.  On 21 February 1973, 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 undesirable discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, the applicant requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if the 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. 

11.  On 21 February 1973, the immediate commander recommended approval of the applicant’s separation.  He further remarked that the applicant’s immaturity and inability to cope with his personal problems, despite almost daily counseling by members of his chain of command, have continued to interfere with his performance of duty.  His unwillingness to face his personal problems and to place them in the proper perspective made him a burden on the military. 

12.  On 22 February 1973, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  He further remarked that the applicant had been AWOL on three separate occasions and that every attempt was made to rehabilitate him, but his duty performance continued to be unsatisfactory.  The intermediate commander concluded that the applicant had no potential as a useful member of the Army and should be discharged.

13.  On 26 February 1973, the applicant’s senior commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  

14.  On 1 March 1973, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  Accordingly, he was discharged on 6 March 1973.  The DD Form 214 he was issued confirms he was discharged under chapter 10, of Army Regulation      635-200, and completed a total of 3 months and 5 days of creditable active military service with 66 days of lost time due to AWOL.

15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

16.  The applicant’s available medical records do not reveal that he suffered any injuries or illness throughout his military service.

17.  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.  However, at the time of the applicant’s separation, an undesirable discharge was normally considered appropriate.

18.  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.

19.  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 his discharge should be upgraded.

2.  There is no evidence in the available records, and the applicant did not provide any substantiating evidence, that shows his pattern of AWOL was due to medical problems.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, of Army Regulation 635-200, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, knowingly, and in writing, requested discharge from the Army in lieu of trial by court-martial; all requirements of law and regulation were met; and it appears his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his 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, the applicant is not entitled to either a general or an honorable discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x____  __x___  __x___  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.



							JS
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002150



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