IN THE CASE OF:	  

	BOARD DATE:	  3 July 2008

	DOCKET NUMBER:  AR20080006837


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 his Undesirable Discharge (UD) be upgraded to a General Discharge (GD).

2.  The applicant states his service was honorable and he never had a court-martial.  He needs an upgrade to qualify for Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army for 3 years on 27 May 1971.  Upon completion of Basic Combat Training and Advanced Individual Training at Fort Jackson, SC, he was awarded military occupational specialty (MOS) 71B (Clerk Typist) and assigned to Fort Benning, GA for duty in his MOS.  He was later reassigned to the Army Band at Fort Benning when it was discovered he could play the saxophone.  His conduct and efficiency at Fort Benning were rated "excellent."

3.  The applicant was next assigned to Fort Huachuca, AZ for duty as a clerk typist with the Criminal Investigation Division (CID) Resident Agency and the 512th Military Police Company.  At Fort Huachuca, his conduct and efficiency declined as he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order on 12 September 1972.

4.  In April 1973, the applicant was transferred to Fort Belvoir, VA.  At Fort Belvoir, he was absent without leave (AWOL) from 18 June 1973 through 24 September 1973.  Upon his return to military control, he was assigned to the Personnel Control Facility at Fort George G. Meade, MD.

5.  On 27 September 1973, court-martial charges were formally preferred against the applicant for AWOL.  On 3 October 1973, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service.  He stated that he understood the nature and consequences of the UD that he might receive.  He declined to submit a statement in his own behalf.

6.  On 16 October 1973, the approving authority approved the applicant's request for discharge and directed he be issued an UD.  He was discharged and issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) on 23 October 1973.  He had 2 years, 1 month, and 19 days of creditable active Federal service and 98 days of lost time due to AWOL.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 2 May 1979, denied his request.

8.  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 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 is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did have a period of honorable service from enlistment through his duty assignment at Fort Benning; however, his conduct and efficiency deteriorated once he was assigned to Fort Huachuca, and he received NJP for disobeying an order.

2.  After his arrival at Fort Belvoir, the applicant went AWOL for 98 days.  Court-martial charges were preferred against him and, after consulting with legal counsel, he requested discharge in lieu of trial by court-martial.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the Federal court-martial conviction and the punitive discharge that he might have received.

3.  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.  There is no indication that the request was made under coercion or duress.

4.  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

__xxx___  __xxx___  __xxx___  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.


								XXX
	_______________________
      	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)                                         AR20080006837



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ABCMR Record of Proceedings (cont)                                         AR20080006837



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