IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20080004672 


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, characterized as under other than honorable conditions, be upgraded to general under honorable conditions.

2.  The applicant states that he stayed in the Army from 14 December 1970 to
23 July 1973.  He became an alcoholic, who suffered mental illness.  He further states that other Soldiers with discharges similar to his were upgraded.

3.  The applicant provides no additional evidence.

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 the Regular Army on 15 December 1970.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 71B (Clerk Typist).  

3.  On 4 August 1971, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully appropriating a vehicle, property of the U. S. Army.

4.  On 4 February 1972, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from on or about 19 January to on or about 26 January 1972.

5.  The applicant’s Army Discharge Review Board (ADRB) packet indicates he went AWOL on 12 September 1972, was arrested by civil authorities and charged with possession of marijuana and robbery, was convicted of loitering and sentenced to 30 days confinement, and was released without further confinement to the military police.  There is no evidence to show he received NJP for this period of AWOL.

6.  On 5 December 1972, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty; for disobeying a lawful order to remove his hands from his pants pockets and to come to attention; and for being disrespectful in deportment towards his superior warrant officer. 

7.  On 27 April 1973, the applicant accepted NJP under Article 15, UCMJ, for being AWOL from on or about 2 February to on or about 9 April 1973.   

8.  On 7 June 1973, the applicant accepted NJP under Article 15, UCMJ, for two specifications of assault and for one specification of willfully and wrongfully destroying by breaking glasses and ash trays, the property of nonappropriated funds.

9.  On 17 July 1973, the applicant completed a separation physical and was found qualified for separation.

10.  On 27 July 1973, the applicant completed a mental status evaluation.  He was found to be responsible, both to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  No disqualifying mental or physical defects sufficient to warrant disposition through medical channels were found.  He was cleared for any administrative decision deemed appropriate by his command.


11.  On 21 June 1973, court-martial charges were preferred against the applicant, charging him with going, without authority, from his place of duty; with offering violence against his superior commissioned officer by raising his fist in a threatening manner; with being disrespectful in language toward his superior noncommissioned officer; and with being drunk and disorderly.

12.  On 11 July 1973, the applicant requested discharge for the good of the service.  He indicated that he had not been subjected to coercion with respect to the request for discharge and was advised of the implications that were attached to it.  He understood that, if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He did not submit statements in his own behalf.

13.  On 26 July 1973, the applicant’s request was approved by the appropriate authority.

14.  On 30 July 1973, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 2 years, 4 months, and 19 days of creditable active service and had 86 days of lost time.

15.  On 4 December 1979, the ADRB denied the applicant’s request for an upgrade of his discharge.  

16.  On 16 July 1981, the ADRB again denied the applicant’s request for an upgrade of his discharge.

17.  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 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.  The request may be submitted at any time after charges 

have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

18.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

19.  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’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 court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  Each case is evaluated on its own merits.  It is acknowledged that the applicant stayed in the Army from December 1970 to July 1973.  However, that service was not satisfactory.  He received his first Article 15 before he had          9 months of service; he received a total of five Article 15s; and he had an additional AWOL period for which there is no record of his receiving an Article   15, but during which he had a civil arrest and conviction.

3.  The applicant completed a mental status evaluation prior to his separation and no disqualifying mental defect sufficient to warrant disposition through medical channels was found.  He was found to be able to distinguish right from wrong and to adhere to the right.

4.  The applicant’s record of service, combined with the lack of a finding that he had a mental illness that might have caused his misconduct, was insufficiently meritorious to warrant upgrading his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ____xx__  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.



	_________xxxxx_________
      	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)                                         AR20080004672



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ABCMR Record of Proceedings (cont)                                         AR20080004672



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