IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080006495 


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 discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded because it has been over 30 years since his discharge and he is trying his best to enter school/college.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 13 May 1974 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 in the Regular Army on 13 January 1971 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 13A (Field Artillery Basic).

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 2 June and 29 September 1972.  His offenses included failure to obey a lawful order from a commissioned officer and being absent without leave (AWOL) during the period from
12 - 23 September 1972.

4.  On 7 August 1973, the applicant pled not guilty but was convicted by a special court-martial of being AWOL during the period from 12 January to 18 June 1973.

5.  On 24 April 1974, court-martial charges were preferred against the applicant for being AWOL during the period from 1 February to 21 April 1974.

6.  On 25 April 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 (now know as the Department of Veterans Affairs) benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

7.  The applicant submitted a statement wherein he stated he should be discharged because he couldn't adjust to military standards.  He further stated he did not deserve an undesirable discharge because he tried to be a good Soldier.

8.  The applicant's commander and intermediate commander recommended approval of his request for discharge and that he receive an undesirable discharge.

9.  The appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be furnished a general discharge.


10.  On 13 May 1974, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service.  He had completed 1 year, 11 months, and 18 days of active service that was characterized as under honorable conditions.  He had 419 days of time lost and 79 days time lost subsequent to his normal expiration term of service.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 17 September 1974, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

12.  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 normally provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because it has been over 30 years since his discharge and he is trying his best to enter back in school/college.

2.  The ABCMR does not upgrade discharges based solely on the passage of time or to make an individual eligible for benefits from other agencies.

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.  However, the applicant was discharged under honorable conditions and was furnished a General 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.  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

___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)                                         AR20080006495



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ABCMR Record of Proceedings (cont)                                         AR20080006495



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