IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080006508 


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 (UD) be upgraded.

2.  The applicant states that his discharge is unjust because he was led to believe he would receive a general discharge and upon receiving his discharge he was told to apply for an upgrade and after 34 years he is doing so.

3.  The applicant provides no supporting documentation.

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, a draftee, entered active duty on 15 January 1971.

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ):

	a.  on 12 February 1971, for being AWOL (absent without leave) on 8 February 1971; and 

	b.  on 23 March 1971, for being AWOL 5 through 21 March 1971.

4.  On 14 April 1971, he completed training, and was awarded MOS 71B (Clerk Typist).

5.  On 29 June 1971, a special court-martial found the applicant guilty of being AWOL from 10 May 1971 through 8 June 1971.

6.  On 21 December 1971, a special court-martial found the applicant guilty of being AWOL from 26 through 27 July 1971, 31 July through 13 September 1971, and 16 September through 22 November 1971.

7.  The record shows the applicant spent 56 days in military confinement (from 15 December 1971 through 8 February 1972).  

8.  The applicant went AWOL on 25 October 1972.  He was dropped from his unit's roll on 25 October 1972 and a court-martial charge sheet was initiated for three periods of AWOL including the period commencing on 25 October 1972. 

9.  He was AWOL from 25 October through 7 December 1972.  Upon return to military control he was placed in pretrial confinement.  His total period of confinement is not shown in the available record.

10.  On 15 December 1972, a new court-martial charge sheet was prepared and the only charge listed was the period of AWOL from 25 October through 7 December 1972. 

11.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that if the request was accepted that he could receive a discharge under other than honorable conditions and be furnished an UD Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.

12.  In a statement provided with his request for discharge the applicant indicated he had taken 307 days of unauthorized leave and that if he was not discharged he would continue to go AWOL.

13.  On 19 January 1973, the discharge authority approved the applicant's request for discharge and directed that he receive a UD.

14.  The applicant was discharged on 29 January 1973 with a UD.  He had at least 281 days of lost time due to being AWOL and over 58 days spent in confinement.  The available record does not contain a copy of the applicant’s 
DD Form 214.

15.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL on 14 separate occasions.

16.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  In pertinent part, it states at:

	a.  Paragraph 3-7b, as then in effect, stated that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that a UD was issued when there was one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an UD for discharges issued under the provisions of chapter 10 of this regulation; and

	b.  Chapter 10 provided, in pertinent part, that a member who had 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 trial by court-martial.  A discharge under conditions other than honorable was normally considered appropriate and the regulation provided for the issuance of an undesirable discharge.

17.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was on active duty for less than a month before he first went AWOL.  He repeated this offense on 14 occasions having no period of creditable service longer than approximately 40 days between his various periods of AWOL.  

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of 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 or that he was told that he would receive anything other than a UD.

3.  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.

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)                                         AR20080006508



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ABCMR Record of Proceedings (cont)                                         AR20080006508



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