RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  01 May 2008
	DOCKET NUMBER:  AR20080003614 


	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 general discharge.

2.  The applicant makes no argument in support of his request. 

3.  The applicant provides no additional documents with his request.

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 in Pittsburgh, Pennsylvania on 23 May 1969 for a period of 3 years and training as a stock control and accounting specialist.  He was transferred to Fort Jackson, South Carolina to undergo his basic combat training (BCT).

3.  On 25 August 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 7 July to 31 July 1969.  He was sentenced to confinement at hard labor for 45 days (suspended for 45 days), a forfeiture of pay and reduction to the pay grade of E-1.  

4.  He completed his BCT and was transferred to Fort Lee, Virginia to undergo his advanced individual training (AIT) on 5 September 1969.  

5.  The applicant again went AWOL on 7 November 1969 and remained absent in desertion until he was apprehended by civil authorities in Swissvale, Pennsylvania on 28 December 1969 and was returned to military control at Fort Meade, Maryland, where charges were preferred against him for the AWOL offense.

6.  On 13 January 1970, 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.

7.  The appropriate authority approved his request on 12 February 1970 and directed that he be furnished an Undesirable Discharge Certificate.  

8.  Accordingly, he was discharged under other than honorable conditions on 19 February 1970, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 months and 1 day of total active service and 86 days of lost time due to AWOL.

9.  On 26 March 1973, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he was unaware that he was receiving a bad discharge and believed that he had been treated unjustly.  On 23 October 1973, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

10.  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. 

2.  The applicant’s records have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service and his repeated misconduct.  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)                                         AR20080003614



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