IN THE CASE OF:
BOARD DATE: 29 May 2008
DOCKET NUMBER: AR20080005571
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 under the provisions of Army regulation 635-200, Chapter 10 be upgraded to honorable.
2. The applicant states, "I would like an upgrade to honorable."
3. The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).
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 applicants 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 applicants 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 for a training of choice option in the clerical field. He entered active duty on 15 September 1969 but did not complete his training.
3. On 13 May 1970, a special court-martial found him guilty of being absent without leave (AWOL) from 10 January to 25 February 1970.
4. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military justice (UCMJ), on 8 August 1970, for willful disobedience of a commissioned officer.
5. On 22 January 1971, charges were preferred against the applicant from the Overseas Replacement Station, Oakland, California for being AWOL on 13 and
14 October 1970, from 3 to 12 November 1970, from 2 to 10 December 1970, and from 12 December 1970 to 16 January 1971. On 26 January 1971 a medical examination found the applicant qualified for duty or separation.
6. The applicant consulted with legal counsel, on 17 February 1971, and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.
7. He voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged 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.
8. The separation authority approved the applicants request for discharge and directed discharge under other than honorable conditions. On 19 March 1971 the applicant was discharged. In approximately 13 months of active duty service he had accrued only 10 months and 3 days of creditable service.
9. Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
10. The Manual for Courts-Martial, Table of Maximum Punishments shows that a punitive discharge is authorized for offense of missing movement, any AWOL of more than 30 days and when an individual is found guilty of two or more offenses for which the authorized confinement totals 6 months or more.
11. The Army Discharge Review Board (ADRB) denied his 1976 and 1980 requests for discharge upgrade.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
3. 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.
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