IN THE CASE OF:	  

	BOARD DATE:  	  

	DOCKET NUMBER:  AR20080005986 


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 an honorable discharge.

2.  The applicant states, in effect, that he is now disabled and he desires an upgrade of his discharge so he will be eligible to apply for compensation. 

3.  The applicant provides a written statement in support of his request in which he contends that he injured his knee at Fort Devens, Massachusetts, he was told it would take a simple operation to repair it, two years and multiple operations later and he still suffers from the injury.  He also states that he made mistakes based on his youth, and that during this period he had no guidance.  He states that he has become a productive part of society and wishes to remain so.  

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 in the Regular Army on 25 February 1972.  He completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Devens, Massachusetts.  Upon completion of his training, the applicant was awarded the military occupation specialty (MOS) 71B, Clerk Typist.  

3.  On 4 October 1973, the applicant was punished under Article 15, Uniform Code of Military Justice for disobeying a lawful order to get a hair cut by close of business on 27 September 1973.   The applicant did not comply with the order; therefore, he received the imposed punishment of extra duty for seven days (not to exceed four hours per day), restriction for seven days to the company area to include the mess, the dispensary and the chapel of choice within the confines of Fort Devens, to include regular scheduled services, and the United States Army Security Agency mail room and his place of duty.  The applicant was advised that he may receive legal assistance in reference to the Article 15.  The applicant did not appeal this punishment.

4.  Item 21 (Time Loss) of the applicant’s DA Form 2-1, Personnel Qualification Record, shows that he was absent without leave (AWOL) from 14 February 1975 through 12 April 1975, a total of 58 days.

5.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that on 5 August 1975, he was discharged, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He was furnished an undesirable discharge, with his service characterized as under other than honorable conditions.  At the time of his discharge, the applicant had 3 years and 15 days of active service, with 58 days of lost time.

6.  The applicant did apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however the request was not received within its 
15-year statute of limitations.  

7.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

8.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review. 

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The available evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service-in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

4.  The evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10.  The characterization of service for this type of discharge is normally under other than honorable conditions and it is presumed the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.



5.  It is apparent the applicant desires to have his undesirable discharge upgraded to enable him to apply for Department of Veterans Affairs (VA) compensation; however, the Board does not grant upgrades of discharges for the purposes of qualifying applicants for benefits administered by that agency.

6.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080005986



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ABCMR Record of Proceedings (cont)                                         AR20080005986



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