IN THE CASE OF:	  

		BOARD DATE:	  31 July 2008

		DOCKET NUMBER:  AR20080005263 


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 request, in effect, that his undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, that his UD was unjust based on the fact that his rights to due process under the Administrative Procedure Act in accordance with Chapter 13, Army Regulation 635-200 were violated.  He further states that he requests that his UD be upgraded.

3.  The applicant provides the following documents in support of his application:  Separation Document (DD Form 214); Psychiatric Progress Notes, Reports of Medical Examination (SF 88); Reports of Medical History (SF 89); Immunization Record (SF 601) and Health Record (SF 601).

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 21 April 1967.  He was 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 first class (PFC).  The record documents no acts of valor, significant achievement or service warranting special recognition.  

3.  On 19 December 1967, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about 22 September 1967 through on or about 1 December 1967.  The resultant sentence was confinement at hard labor for six months and a forfeiture of $64.00 per month for six months.

4.  The applicant's records contain a Notice of Return of United States Army Member from Unauthorized Absence (DA Form 3836).  This document shows that the applicant departed AWOL from his unit on 24 December 1967, was dropped from the rolls of the Army (DFR) on 22 January 1968, and was apprehended by military authorities on 8 April 1974.

5.  On 15 April 1974, the applicant underwent a Mental Health Evaluation which stated there were no significant mental illnesses noted.  It further stated the applicant was mentally responsible; could distinguish right from wrong; was able to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.

6.  On 16 April 1974, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the UCMJ, for being AWOL from on or about 24 December 1967 through on or about 
8 April 1974.

7.  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.  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. 

8.  On 22 April 1974, the unit commander recommended approval of the applicant's request for discharge under the provisions of Chapter 10, and requested he receive a UD Certificate.  The unit commander stated that he had personally interviewed the applicant and felt that rehabilitation would not be in the best interest of the applicant or the United States Army.

9.  On 23 April 1974, the Staff Judge Advocate (SJA) recommended approval of the applicant's request for discharge.  The SJA stated that the applicant was pending trial by court-martial for a period of AWOL for approximately 5 years and 3 months.  He further stated that he believed rehabilitation in this case was unlikely and punishment would have little, if any, ultimate benefit to the individual or society.

10.  On 24 April 1974, the separation authority approved the applicant’s request for discharge, and directed that he receive an Undesirable Discharge Certificate. On 1 May 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 6 months and 1 day of creditable active military service, and that he had accrued 2,384 days of lost time due to AWOL.

11.  Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence determined that he had been properly and equitably discharged, and it voted to deny his request for a change to the characterization of his service and/or to the reason of his separation.  

12.  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 his discharge was unjust and that his rights to due process under the Administrative Procedure Act were violated was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, an UD was 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, at the time of the applicant's discharge.   However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  

3.  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. 

4.  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. 

5.  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.  

6.  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)                                         AR20080005263



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ABCMR Record of Proceedings (cont)                                         AR20080005263



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