IN THE CASE OF:	  

	BOARD DATE:	  03 July 2008

	DOCKET NUMBER:  AR20080005984 


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 other than honorable conditions, be upgraded to a discharge under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, he was sent home on emergency leave from Germany due to the impending death of his father (who died 5 August 1972).  He states he knew he was AWOL and turned himself in at Fort Dix, New Jersey, where he convinced them to return him to Germany.  He states he was removed from his military police assignment and was returned to an infantry unit.  He states he received death threats (due to his previous military police duties) and he was constantly ridiculed.  He further states that once he got his finance problem resolved he purchased a ticket to New York.  He further states if it had not been for these events he would probably have made a career of the Army.  He states he suffers from mental problems and needs immediate help.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his application.

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, with parental consent, in the Regular Army on 20 July 1971 for a period of 2 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 3 January 1972, the applicant was assigned to 3rd Military Police Company, 3rd Infantry in Germany.

4.  On 10 March 1972, the applicant was assigned the secondary MOS 95B (Military Police).

5.  On 19 September 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) during the period from 31 July to 14 September 1972.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant was AWOL during the period from 2 - 7 November 1972.  The records contain no disposition for this period of absence.

7.  The applicant's DA Form 20 shows he was AWOL during the period from 
17 November 1972 to 27 August 1973.

8.  The applicant was assigned to the U.S. Army Personnel Control Facility, Fort George G. Meade, Maryland, on 28 August 1973.

9.  The applicant's DA Form 20 shows he was AWOL during the period from 
29 August 1973 to 8 October 1974.

10.  On 24 October 1974, court-martial charges were preferred against the applicant for being AWOL during the periods from 17 November 1972 to 
28 August 1973 and from 29 August 1973 to 9 October 1974.


11.  On 23 October 1974, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will and acknowledged that he was guilty of the offenses with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Undesirable Discharge Certificate; that he would be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

12.  On 6 November 1974, the applicant submitted a statement wherein he stated that he felt the Army had taken his freedom away as well as his freedom to express himself and he thought it would be in the Army's best interest to discharge him.  He further stated he could not adjust to the military because he felt it took away his Constitutional rights as an American citizen.  He further stated that if he were returned to the Army he would only go AWOL again.

13.  On 8 November 1974, the applicant's commander recommended he be separated from the U.S. Army under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations) and that he be given an Undesirable Discharge Certificate.

14.  On 14 November 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be furnished an Undesirable Discharge Certificate.

15.  On 26 November 1974, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), due to conduct triable by court-martial.  He had completed 1 year, 3 months, and 16 days of active service that was characterized as under other than honorable conditions.  He had 297 days of time lost and 445 days time lost subsequent to his normal expiration term of service.

16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

17.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

18.  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.

19.  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 contends his discharge should be upgraded to a discharge under honorable conditions or an honorable discharge.

2.  The applicant contends upon his return to Germany he received death threats and was ridiculed so he bought a ticket for New York and left.  However, the applicant's periods of AWOL encompassed two periods in excess of 250 days with only 1 day of duty in between.  In his statement made in 1974, the applicant had indicated he could not adjust to the military because he felt it took away his Constitutional rights as an American citizen and that he would go AWOL again if returned to the Army.  Therefore, the evidence, including the applicant's statement of 4 November 1974, does not support the applicant's contention.

3.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  

4.  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.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to a discharge under honorable conditions or an honorable discharge.

8.  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 that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      	___        XXX                ___
                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)                                         AR20080005984



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ABCMR Record of Proceedings (cont)                                         AR20080005984



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