IN THE CASE OF:	  

		BOARD DATE:	  29 July 2008

		DOCKET NUMBER:  AR20080005614 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that at the time he was processing for a general discharge he was placed on restriction to the common area, but he was caught outside that area.  He was told by Top [first sergeant] that his general discharge would be cancelled and he would be placed on extra duty and wouldn't be getting out of the service.  He states that he was very young and impressionable and he got scared and went absent without leave (AWOL).  He would greatly appreciate the Montgomery GI Bill at this time in his life to help with his schooling. 

3.  The applicant does not provide any additional documentation.

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 military personnel record shows he enlisted in the Regular Army on 21 September 1976.  He completed the necessary training and was awarded the military occupational specialty (MOS) 19E (Armor Crewman).  

3.  Between, 9 May 1977 and 15 February 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession .01 grams, more or less of marijuana and failing to go to his appointed place of duty.  On  
24 February 1978, the applicant submitted an appeal for failing to go to his appointed place of duty, but his appeal was denied.

4.  On 21 February 1978, the applicant accepted NJP under the provisions of Article 15, UCMJ, for operating a passenger car in a reckless manner by exceeding the speed limit for road conditions which caused the vehicle to slide off the road striking a highway maker and three trees; for wrongfully and unlawfully leaving the scene of the accident; for stealing two "USAREUR" license plates a value of $6.00, the property of the U.S. Government; and for failing to obey a lawful general regulation by operating a uninsured and unregistered vehicle.

5.  On 7 March 1978, the applicant's commander recommended a general discharge under the provisions of Army Regulation 635-200 (Personnel Separation) paragraph 5-31 (Expeditious Discharge Program).  The commander stated, in pertinent part, that the applicant had exhibited continuous inability to accept and conform to the rules and regulations of his superiors and the U.S. Army.  The applicant had consistently decided to pursue a pattern of behavior that rebuked military discipline and authority.  

6.  The applicant was counseled concerning his rights to decline the discharge and his right to submit a statement on his own behalf.  The applicant did not decline the discharge or submit a statement on his won behalf.

7.  On 27 April 1978, charges were preferred against the applicant for being AWOL.  On 22 August 1978, additional charges were preferred against the applicant for being AWOL during the period of 25 March 1978 to 14 August 1978.

8.  The applicant consulted with legal counsel 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him

9.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provision of Army Regulation  
635-200, chapter 10.

10.  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 of 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.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge Certificate.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

11.  On 23 August 1978, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 1 September 1978, the approving authority approved the applicant's request and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Upon discharge the applicant was reduced to the lowest enlisted grade, E-1.

12.  On 14 September 1978, the applicant was discharged.  The DD Form  
214 he was issued shows he completed a total of 1 year, 7 months, and 2 days of total active service and that he had accrued 142 days of time lost.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

14.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  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 requests that his under other than honorable conditions discharge be upgraded to a general discharge. 

2.  The evidence shows the applicant wrongfully had in his possession  
.01 gram, more or less of marijuana, without authority failed to go to his appointed place of duty, operated a passenger car in a reckless manner, wrongfully and unlawfully left the scene of the accident, stole two "USAREUR" license plates of a value of $6.00, the property of the U.S. Government, and failed to obey a lawful general regulation by operating a uninsured and unregistered vehicle.  The applicant was also AWOL from 25 March 1978 to 
14 August 1978.  As such, an under other than honorable conditions discharge was equitable and proper.

3.   Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The extensive length of his AWOL renders his service unsatisfactory. Therefore, he is not entitled to a general discharge.

4.  While the applicant was being processed for a general discharge, he went AWOL before that action could be finalized.  His lengthy period of AWOL warranted court-martial charges which formed the basis for his under other than honorable conditions discharge.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that 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)                                         AR20080005614



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ABCMR Record of Proceedings (cont)                                         AR20080005614



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