IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080005985 


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 to general.   

2.  The applicant states, in effect, that at the time he had just been released from the California Youth authority.  He was young and stupid.  His sister was in the hospital in critical condition.  He did not think about the consequences of this type of discharge.

3.  The applicant provides copies of a supplemental violation report and his request for discharge for the good of the service.

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.  On 5 November 1973, the applicant enlisted in the Regular Army for 3 years.  At the time his age was 18 years and 2 months.  He completed basic combat training.  On 14 January 1974, he commenced advanced individual training as a supply clerk.  

3.  On 19 February 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) during the period from 8 to 18 February 1974.  The punishment included a forfeiture of $74.00 pay per month for 
1 month and 14 days restriction and extra duty.

4.  Records show that on 24 February 1974, the applicant was awarded military occupational specialty (MOS) 76Y10 (Supply Clerk).  Records also show that he was AWOL from 23 February 1974 to 31 July 1975.

5.  A supplemental violation report, dated 4 December 1974, states, in part, that the applicant was arrested by the Los Angles County Sheriffs, Lakewood Station on 22 October 1974 for drunk driving and for having an open container of alcohol [in his vehicle]. He pleaded guilty to reckless driving and was fined $50.00.  On 24 October 1974, he was arrested for ingestion of paint and for receiving stolen property.  He pleaded guilty to receiving stolen property and was sentenced to 10 days in jail and 1 year summary probation.  The applicant states in this report that he was denied leave and deserted from the service because his sister was critically ill and his brother was charged with murder.   

6.  On 7 August 1975, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from on or about 30 October 1974 to on or about 1 August 1975.

7.  On 7 August 1975, 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 an under other than honorable conditions discharge, and of the procedures and rights that were 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. 

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge 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.   

9.  On 9 September 1975, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 23 September 1975, the applicant was discharged accordingly.  He had completed a total of 5 months of creditable active military service and had accrued 534 days of time lost due to AWOL.

10.  On 11 May 1979, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

11.  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.

12.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

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 type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant's record is devoid of any redeeming service.  


4.  The applicant contends that he was young and stupid at the time.  The records show that he was 18 years of age.   His age at the time does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080005985



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