IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080004848 


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 to an honorable discharge (HD). 

2.  The applicant states, in effect, that through basic training, advanced individual training (AIT), and airborne training, he performed well.  He states that his trouble began after he was assigned to Fort Campbell, Kentucky.  He states that he had only been in the United States for 4 years and that he dropped out of school in the 9th grade; therefore, his English was not very good.  He claims that his Captain and Sergeant disliked him and all other Spanish Soldiers due to their lack of understanding of the English language and treated them unfairly.  He now requests that the Board review his records and take into consideration his good performance during training.  

3.  The applicant provides the following documents in support of his application:  Undated Self-Authored Statement; Enlistment Contract (DD Form 4); Unit Memorandum, dated 19 July 1973; Article 15 Unit Orders Number 83, dated
22 August 1973; Article 15 Appellate Record (DA 2627-2); Certificate in Lieu of Receipt, dated 15 August 1973; Notice of Unauthorized Absence from United States Army (DA Form 3835), dated 1 September 1973; Extract Copy of Morning Report (DA Form 188); Deserter Check List (USAEREC Form 35); Headquarters, United States Army Personnel Center, Special Orders Number 64, dated
5 March 1974; Enlisted Qualification Record (DA Form 20); Charge Sheet (DA 



Form 458), dated 9 January 1974; Record of Proceedings Under Article 15, 
UCMJ (DA Form 2627-1), dated 24 July 1973; and Notice of Return of United States Army Member from Unauthorized Absence (DA Form 3836), dated
15 October 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 he enlisted into the Regular Army and entered active duty on 22 November 1972.  He was initially trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His record shows the highest grade he attained while serving on active duty was private/E-2 (PV2), and it documents no acts of valor, significant achievement or service warranting special recognition.  

3.  On 24 July 1973, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying lawful orders on 15 and 18 July 1973.

4.  The applicant's records contain a DA Form 3836, dated 26 October 1973.
This document shows that the applicant departed absent without leave (AWOL) from his unit on 1 August 1973, was dropped from the rolls of the Army (DFR) on 
1 September 1973, and was apprehended by military authorities on 12 October 1973.

5.  The applicant's record also contains a DA Form 3836, dated 5 February 1974, which shows he again departed AWOL from his unit on 30 October 1973, and was DFR'd on the same date.  It also shows he was apprehended by military authorities on 7 January 1974.




6.  On 9 January 1974, a Charge Sheet (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 from on or about 1 August 1973 through on or about 13 October 1973, and from on or about 30 October 1973 until on or about 7 January 1974.

7.  On 14 January 1974, 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.

8.  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. 

9.  On 9 February 1974, the separation authority approved the applicant’s request for discharge, and directed that he receive an Undesirable Discharge Certificate.  On 5 March 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time 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 10 months and
22 days of creditable active military service, and that he had accrued 142 days of lost time due to AWOL.

10.  There is no evidence showing 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.

11.  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.  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 UD.  The separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unjustly discharged with an UD was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, an under other than honorable conditions is normally appropriate for members separated under the provisions of chapter 10, 
Army Regulation 635-200, for the good of the service in lieu of trial by 
court-martial, and an UD was authorized at the time of the applicant's discharge. However, 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 that would have supported anything other than an UD at the time of his discharge, or that would support an upgrade of his discharge 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)                                         AR20080004848



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ABCMR Record of Proceedings (cont)                                         AR20080004848



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