IN THE CASE OF:	 

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20080006138 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that during his basic training he was misevaluated by an Army team who made the determination that the he was unacceptable for military service and would be discharged.  The applicant continues that he was taken to the reception station and became very depressed, disillusioned, and disappointed because he thought he would serve a life time in the military.  The applicant further states after being left in the reception station for four days without any one telling him anything he decided to return home since he had a wife and new baby at home. 

3.  The applicant provides a three-page self-authored statement in support of this 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 record shows that he was inducted in the Army of the United States on 24 June 1971 for a period of 2 years.  He did not successfully complete basic training and was not awarded a military occupational specialty (MOS).  The highest rank he attained while serving on active duty was private/pay grade E-1. 

3.  A DD Form 458 (Charge Sheet), dated 21 May 1973, shows the applicant was charged with one specification of being absent without leave (AWOL) during the period 31 July 1971 through 17 May 1973.

4.  On 21 May 1973, the applicant submitted a request for discharge for the good of the service under the provisions Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10.  In his request for discharge, the applicant indicated that he had not been coerced into requesting discharge and had been advised of the implications that were attached to the request.

5.  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 undesirable discharge, and of the procedures and rights that were available to him.  He further acknowledged that 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.  The applicant elected to submit a statement on his own behalf.

6.  In the applicant's statement he stated that the Army had been a burden on his mind and that he had grown to hate the Army.  The applicant further stated that he understood what an undesirable discharge was and was willing to accept one in order to get out of the Army.  The applicant continued that he would be forced to go AWOL again if he was returned to duty.  The applicant concluded that he felt the charges that were pending against him would not affect him as a civilian.  




7.  On 15 June 1973, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 21 June 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 2 months and 3 days of creditable active military and that he accrued over 600 days of time lost due to AWOL.  

8.  On 25 April 1985, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  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, submit a request for discharge for 
the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time, an undesirable discharge was normally considered appropriate.

10.  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.

11.  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 that his undesirable discharge should be upgraded.

2.  Evidence of record shows the applicant's request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process. 

4.  Evidence of record shows the applicant was charged with being AWOL during the period 31 July 1971 through 17 May 1973 and had 655 days of time lost due to being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  Accordingly, the type of discharge directed was appropriate considering all the facts of the case.

6.  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.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 25 April 1985.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X____  ___X____  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

1.  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)                                         AR20080006138



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ABCMR Record of Proceedings (cont)                                         AR20080006138



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