IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20080002660 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded.  

2.  The applicant states, in effect, he believes his discharge was unjust because he attempted to do his service and was just unable to cope, while drug users were rewarded with good discharges.  

3.  The applicant provides a self-authored statement and two third-party statements 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 record shows that he enlisted in the Regular Army and entered active duty on 30 January 1973.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman), and private/E-2 (PV2) is the highest rank he attained while serving on active duty.  His Enlisted Qualification Record (DA Form 20) shows that he successfully completed basic combat training at Fort Ord, California and advanced individual training (AIT) at Fort Campbell, Kentucky.  Upon completion of AIT, he was assigned to the 327th Infantry Regiment, 101st Airborne Division, and performed duties in MOS 11B as a rifleman.  

3.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that during his active duty tenure, he earned the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  Item 44 (Time Lost) shows the applicant accrued a total of 47 days of time lost due to two periods of being absent without leave (AWOL) and one period of confinement.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 July 1973, for two specifications of AWOL.  His punishment for these offenses was a reduction to private/E-1 (PV1), a forfeiture of $153.00, and 30 days of correctional custody.  

5.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a properly constituted separation document (DD Form 214) that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, on 26 April 1974, after completing a total of 1 year, 1 month, and 11 days of creditable active military service and accruing 47 days of time lost due to AWOL and confinement.  

6.  The applicant provides two third-party statements, one from his mother and the other from his former wife.  His mother indicates the applicant was fun loving before he entered the military, and both indicate he the applicant was withdrawn and had difficulties after his military service.  

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

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 trial by court-martial. An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was unjust and that it was unfair for those who could not cope with military life to receive a bad discharge, while those who abused drugs were rewarded was carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance, and his undistinguished record of service clearly did not support a GD or HD at the time, nor does it support an upgrade now.  
5.  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

____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.




       _   __x_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002660



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ABCMR Record of Proceedings (cont)                                         AR20080002660


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