RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080002447 


	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:

	a.  his service was impaired by his youth and immaturity as well as personal problems;

	b.  he tried to serve and wanted to, but just couldn’t or wasn’t able to;

	c.  his chain of command abused its authority when it decided to discharge him; and

	d.  he needs his discharge upgraded so he could qualify for Department of Veterans Affairs (VA) benefits.

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 was born on 10 September 1954 and enlisted in the Regular Army at the age of 18 on 29 September 1972 for a period of 4 years.  He completed basic combat training at Fort Knox, Kentucky, and proceeded to Fort Benning, Georgia, for advanced individual training (AIT). 

3.  On 12 January 1973, while still attending AIT, the applicant departed his unit in absent without leave (AWOL) status.  He was subsequently dropped from the Army rolls (DFR) on 9 February 1973.  He remained in that status until he was apprehended by civil authorities and returned to military control at Maxwell Air Force Base, Alabama, on 17 April 1973. 

4.  On 18 April 1973, the applicant departed again in AWOL status and was reported DFR on the same day.  He remained in that status until he was apprehended by civil authorities on 16 June 1976 and was returned to military control at Fort Bragg, North Carolina, on 29 June 1976.  

5.  On 21 June 1976, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 18 April 1973 through on or about 17 June 1976.  

6.  On 24 June 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  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 discharge or a discharge under other honorable conditions.  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. 

8.  On 29 June 1976, the Commander, Personnel Control Facility, XVIII Airborne Corps, Fort Bragg, North Carolina, conducted an interview with the applicant during which, the applicant stated that he was unable to adjust to Army life and did not desire to remain on active duty.  In view of the applicant’s attitude toward military life and lack of rehabilitative potential, the commander recommended approval of the request for discharge with an Undesirable Discharge Certificate.

9.  On 2 July 1976, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.
10.  On 8 July 1976, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Undesirable Discharge Certificate. On 28 July 1976, he was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with an Undesirable Discharge Certificate with service characterized as under other than honorable conditions.  This form further confirms the applicant had completed a total of 4 months and 29 days of creditable active military service and had 1,231 days of lost time. 

11.  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. 

12.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate.

13.  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.

14.  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.  With respect to the applicant’s arguments:

	a.  The applicant was 18 years old when he enlisted in the Regular Army and when he committed his offense.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of indiscipline was the result of his age.

	b.  There is no evidence in the available records and the applicant did not provide any evidence that shows he was undergoing any personal or family problems during his military service.  Additionally, there is no evidence that he addressed such problems with his chain of command or made any efforts through any of the support channels available at his duty location at the time to alleviate the alleged problems.

	c.  Evidence of record shows that on 29 June 1976, the applicant’s immediate commander conducted an interview with him.  During this interview, the applicant clearly stated he was unable to adjust to Army life and did not desire to remain on active duty.  In view of the applicant’s attitude toward military life and lack of rehabilitative potential, the immediate commander recommended approval of the request for discharge. 

	d.  There is no evidence that the chain of command abused its authority during the discharge process.  The applicant was AWOL for 1,231 days.  Court-martial charges were preferred against him and after consulting with defense counsel, he willingly, voluntarily, and in writing requested separation from the Army in lieu of trial by court-martial. 

	e.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative to inquire about eligibility and/or entitlements to VA benefits. 

3.  The applicant’s records show 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 trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All 
requirements of law and regulation were met, and the rights of the applicant 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

__TSK___  __JLP___  __DWT___  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.



							TSK
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002447



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