IN THE CASE OF:	

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080004844 


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, that he was young when he was discharged from the military with an UD.  He states he loves his country and that it's been
32 years since his discharge, and he is now requesting that his discharge be upgraded.  

3.  The applicant provides no 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 record shows he enlisted into the Regular Army and entered active duty on 28 June 1974.  He was trained in and awarded military occupational specialty (MOS) 64C (Motor Transportation Operator).  His record shows the highest grade he attained while serving on active duty was private first class (PFC).  The record documents no acts of valor, significant achievement or service warranting special recognition.  

3.  On 5 March 1975, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice 
(UCMJ), for being disrespectful towards a superior noncommissioned officer (NCO).  His punishment for this offense was a forfeiture of $50.00, reduction to 
private/E-2 (PV2), and 14 days of extra duty.

4.  On 29 March 1975, the applicant was arrested and confined by civil authorities.  He was ultimately charged and convicted of assault.  The resultant punishment for this offense was a fine of $125.00, 1 year probation, and 
30 days in confinement (suspended).  He was returned to military control on 
31 March 1975. 

5.  On 17 April 1975, the applicant accepted NJP for being absent without leave (AWOL) from on or about 8 April 1975 through on or about 15 April 1975.  His punishment for this offense was a reduction to private/E-1 (PV1) and 45 days of extra duty.

6.  On 5 May 1975, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty on 25, 26, and 27 April 1975.  His punishment for these offenses was a forfeiture of $150.00 and 20 days of extra duty.

7. On 18 December 1975, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Articles 121, 90, and 86 of the UCMJ, as follows:  Article 121, by wrongfully appropriating a
2 1/2 ton military truck; Article 90, by disobeying a lawful command; and Article 86, by failing to be at his appointed place of duty at the prescribed time, and for being AWOL from 4 December until 6 December 1975 and again from 
12 December 1975 until 19 December 1975.

8.  The applicant's records contain a Notice of Return of United States Army Member from Unauthorized Absence (DA Form 3836), dated 27 January 1976.
This document shows that the applicant departed AWOL from his unit on 
12 December 1975, was dropped from the rolls of the Army (DFR) on 
18 December 1975, and was apprehended by military authorities on 21 January 1976.
9.  The applicant's record also contains a Notice of Unauthorized Absence from United States Army (DA Form 3835), dated 13 February 1976.  This document shows that the applicant departed AWOL on 26 January 1976, and was dropped from the rolls of the Army (DFR) on that same date.

10.  On 4 March 1976, a DD Form 458 was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the UCMJ, for being AWOL on or about 12 December 1975 through on or about 
21 January 1976, and from on or about 26 January through on or about 
27 February 1976.

11.  On 1 March 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

12.  In his request for discharge, the applicant acknowledged that he understood that if his 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 further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD and elected not to submit a statement on his own behalf. 

13.  On 1 March 1976, the separation authority approved the applicant’s request for discharge, and directed that he receive an UD.  On 26 March 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that at the time, he had completed a total of 1 year, 5 months and 17 days of creditable active military service and had accrued 102 days of lost time due to being AWOL and in confinement.

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


15.  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 separation authority can authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's overall record of service; however, under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant's separation, the regulation provided for the issuance of an UD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UD be upgraded because he was young at the time was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.  

2.  By regulation, although an under other than honorable conditions discharge is normally appropriate for members separated under the provisions of chapter 10, 
Army Regulation 635-200, the separation authority can authorize a GD or HD if such was merited by the member's overall record of service.  In this case, the applicant's record is void of any acts of valor, significant achievement, or service warranting special recognition, and reveals an extensive disciplinary history.  As a result, his record provided no basis to support a GD or HD at the time of his discharge, or that would support an upgrade at this time.

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge 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. 

4.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UD, which was consistent with regulatory policy.  

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)                                         AR20080004844



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ABCMR Record of Proceedings (cont)                                         AR20080004844



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