IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006187 


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, to have his last discharge upgraded from under other than honorable conditions (UOTHC) to an honorable discharge. 

2.  The applicant states, in effect, that he needs his last discharge upgraded so he may be able to obtain gainful employment and the he may be able to use the Department of Veterans Affairs health care system.  He states that he served honorably in the U.S. Army for 8 years and he made one mistake and went absent without leave (AWOL) for 6 months.  He also states that he has turned his life around.  Finally, he states that he erred in 1977; however, he was young and did not understand the bearing an UOTHC discharge would have on his life.

3.  The applicant provides no additional documentation 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 was inducted into the Army of the United States on 28 May 1969, for a period of 2 years.  He completed the required training and was awarded military occupational specialty (MOS) 63C (Track Mechanic).  

3.  The applicant was honorably discharged from active duty on 18 May 1971 and transferred to the United States Army Reserve.

4.  On 30 April 1974, the applicant reenlisted in the Regular Army.  He was honorably discharged from active duty on 5 November 1975 for the purpose of immediate reenlistment.  On 6 November 1975, the applicant reenlisted in the Regular Army.  He continued to serve in MOS 63C.  

5.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.

6.  On 22 December 1976, charges were preferred against the applicant for being AWOL from 5 June 1976 to 1 December 1976.

7.  On 23 December 1976, 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 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.  The applicant submitted a separate statement on his behalf requesting discharge for the good of the service in accordance with Army Regulation 635-200, because he felt that he could no longer function in the military.  He felt that he could better himself outside of the military.  He also stated that being in the military caused great conflict between him and his spouse and that his three children needed their father.  He concluded by stating that his attitude towards the Army had changed and it would be better for him to get out.

9.  On 23 December 1976, a Mental Status Evaluation and a physical examination cleared the applicant for separation.

10.  On 23 February 1977, the separation authority directed that the applicant be separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service and that he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 8 March 1977, the applicant was discharged accordingly.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed a total of 10 months and 10 days on his current enlistment and he had completed 4 years, 4 months, and 6 days of prior active military service.  He also had 173 days of lost time due to being AWOL.

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

12.  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, 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, a discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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 discharge should be upgraded because he was young and foolish at the time of his service was carefully considered and found to be without merit.

2.  Records show that the applicant was 28 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other soldiers of the same age who successfully completed military service.

3.  The evidence of record shows that the applicant voluntarily requested and accepted a discharge in lieu of court-martial for having 173 days of lost time due to being AWOL.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this 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)                                         AR20080006187



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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