RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 May 2008
	DOCKET NUMBER:  AR20080003608 


	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 his discharge was inequitable because it was based on an isolated incident.  

3.  The applicant provided a copy of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 17 April 1973.

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 inducted into the Army of the United States on 9 November 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64C (Motor Transportation Operator).  The highest rank/grade the applicant attained during his military service was specialist four/E-4.

3.  The applicant's records show that he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any significant acts of valor during his military service.

4.  On 1 September 1972, the applicant pled guilty at a Special Court-Martial to three specifications of being absent without leave (AWOL) during the periods on or about 11 July 1972 through on or about 11 July 1972; on or about 13 July 1972 through on or about 13 July 1972; and on or about 31 July 1972 through on or about 2 August 1972.  The Court sentenced him to reduction to the rank/grade of private first class (PFC)/E-3, 30 days of extra duty, and 30 days of restriction.  The sentence was adjudged on 1 September 1972 and was approved on 3 October 1972.  
5.  On 2 October 1972, the applicant departed his unit in an AWOL status.  He was subsequently dropped from the Army rolls on 1 October 1972.  He was apprehended by federal authorities and returned to military authorities on 14 March 1973. 

6.  On 29 March 1973, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 2 October 1972 through on or about 14 March 1973.  

7.  On 5 April 1973, 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 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).

8.  In his request for discharge, the applicant indicated that he understood that if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an undesirable Discharge Certificate.  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. 

9.  On 6 April 1973, the applicant's immediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  The immediate commander remarked that the applicant’s conduct and efficiency ratings were unsatisfactory.  The immediate commander also added that punishment can be expected to have minimal rehabilitative effect and that the total lack of any ultimate benefit to the Army or society accomplished by punishment would seem to justify granting the requested discharge.  

10.  On 6 April 1973, the applicant’s intermediate commander concurred with the immediate commander’s remarks and recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.   


11.  On 10 April 1973, 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 17 April 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows that he was discharged for the good of the service with an undesirable discharge, with service characterized as under conditions other than honorable.  This form further confirms the applicant had completed a total of 11 months and 22 days of creditable active military service and had 169 days of lost time due to AWOL.

12.  On 16 November 1973 and on 3 October 1985, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge. 

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, 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, 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.

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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  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, willingly, and in writing, 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.

3.  Based on his repeated 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

__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)                                         AR20080003608



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