IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080004577 


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 an upgrade of his discharge. 

2.  The applicant states that he was never informed by counsel that he could have applied for a hardship discharge, although he informed his counsel that his wife and children were destitute and were on their way to see the applicant at Fort Riley, Kansas, where he was being held; and that he had no place to live and had borrowed all the money he could from the Army Emergency Relief Fund and the American Red Cross.  He also adds that he was informed that an under other than honorable discharge was the best bad discharge he could get.  He concludes that he was young at the time and the decision to discharge him was influenced by the fact that between 50 and 100 Soldiers were discharged every week at his installation.  

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 28 April 1954 and enlisted in the Regular Army for a period of 3 years, at the age of 17, on 11 June 1971, with parental consent.  He completed basic combat training at Fort Knox, Kentucky, and proceeded to Fort Gordon, Georgia, to attend advanced individual training (AIT) for military occupational specialty (MOS) 72F (Data Communications Terminal Specialist) on 27 August 1972.  However, for unknown reasons, on 30 October 1971, he proceeded to Fort Leonard Wood, Missouri, to attend AIT for MOS 94B (Food Service Specialist).  

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

4.  On 31 October 1971, the applicant departed his AIT unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 30 November 1971.  He surrendered to military authorities in Chicago, Illinois, and was transferred to Fort Riley, Kansas, on 19 January 1972. 

5.  On 21 January 1972, Court-Martial charges were preferred against applicant for one specification of being AWOL during the period on or about 30 November 1971 through on or about 19 January 1972.  

6.  On 7 February 1972, 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).

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.  He also entered the statement "no one has forced me to request a discharge" on his request for discharge. 

8.  On 8 February 1972, the applicant requested to be placed on voluntary excess leave pending his discharge from the Army.  His immediate commander approved 24 days of excess leave, from 7 February 1972 to 2 March 1972. 

9.  On 8 February 1972, the applicant’s immediate commander remarked that the applicant’s retention was neither practicable nor desired.  He further recommended an Undesirable Discharge Certificate. 

10.  On 8 February 1972, the intermediate commander recommended approval of the applicant’s separation.  He further remarked that the applicant’s retention was neither practicable nor desired; that the applicant would never be a satisfactory soldier; and that his retention would have served no purpose. 

11.  On 8 February 1972, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate, effective 2 March 1972, the date his excess leave ended.  However, on 2 March 1972, the applicant did not return from excess leave and was subsequently reported in an AWOL status.  It is unclear if he surrendered or was apprehended; however, he was reported present for duty on 10 March 1972.  This date became his adjusted discharge date.

12.  The DD Form 214 he was issued confirms he was discharged on 10 March 1972, under chapter 10 of Army Regulation 635-200, in lieu of a court-martial.  This form further shows the applicant completed 6 months and 1 day of creditable active military service and had 89 days of lost time due to AWOL.

13. 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.

14.  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.

15.  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.

16.  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 17 when he enlisted in the Regular Army.  However, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age. Furthermore, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 

	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 or hardship 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.  There is no evidence in the available records nor did the applicant provide documentation to substantiate what he described as "command influence."  The applicant was discharged in accordance with applicable regulation, in lieu of trial by court-martial.  The underlying reason for his discharge was his pending trial by court-martial.  He chose to request separation instead.  He even indicated on his request that "no one has forced me to request a discharge."

	d.  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.  

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 trail by court-martial.  The applicant willingly, voluntarily, 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.

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

__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
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)                                         AR20080004577





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ABCMR Record of Proceedings (cont)                                         AR20080004577



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