IN THE CASE OF:	  

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20080004925 


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 be upgraded. 

2.  The applicant states that his company commander did not give him a legal Army lawyer.  He states the civilian town put him in jail for bad checks, then the military wanted him to be locked up for six months.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).  

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 was inducted into the Army on 27 July 1972.  He completed basic combat training and advanced individual training and he was awarded military occupational specialty 36C (lineman).  

3.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows a period of AWOL (absent without leave) from 19 November 1972 to 21 November 1972.  There is no record of nonjudicial punishment (NJP) for this period of AWOL.  

4.  On 5 June 1973, the applicant accepted NJP under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on two separate occasions on 30 May 1973.  His punishment consisted of a forfeiture of $50.00 for one month and extra duty for 7 days.  

5.  He was advanced to private first class on 1 September 1973.  

6.  On 2 October 1973, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful command on two separate occasions on 17 September 1973. His punishment consisted of a reduction to pay grade E-2 and restriction for 21 days.

7.  His DA Form 20 shows he was arrested on 15 October 1973 by civil authorities in Sierra Vista, Arizona for passing bad checks on 15 October 1973.  He was convicted and sentenced to 60 days confinement.  

8.  On 12 December 1973, charges were preferred against the applicant for stealing a tape player of a value of $99.95.  

9.  On 27 December 1973, an additional charge was preferred against the applicant for wrongfully possessing 3.17 grams, more or less, of marijuana.  

10.  On 3 January 1974, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if an undesirable discharge was issued.  He did not submit statements in his own behalf.  


11.  The unit commander and intermediate commander recommended disapproval.  

12.  On 14 January 1974, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

13.  On 18 January 1974, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year, 4 months, and 14 days of active military service with 38 days of lost time due to AWOL and confinement.

14.  On 22 July 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  

15.  On 15 December 1982, the ADRB again denied the applicant’s request for an upgrade of his discharge.  

16.  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 undesirable discharge.

17.  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.  

18.  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.  The applicant was afforded the opportunity to submit statements in his own behalf, but he failed to do so.

3.  The applicant's record of service shows he received two Article 15s and was arrested by civil authorities for passing bad checks.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable or general discharge.

4.  The applicant’s statements are noted.  However, he acknowledged that he consulted with military counsel during the chapter 10 discharge process.  

5.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

xxx______  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.



      xxxxxxxxxxxx___________
      	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)                                         AR20080004925



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ABCMR Record of Proceedings (cont)                                         AR20080004925



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