IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006860 


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 that his discharge be changed to a hardship discharge.  

2.  The applicant states, in effect, that when he entered the Army he was promised Electronics School at Fort Eustis, Virginia, he was later informed the school was not available and he would have to select another school for his Advanced Individual Training (AIT).  He was again assured that he would be able to get into the school.  He was married and he had a new baby when he entered the Army.  He was told by his recruiter that his family could join him after AIT when he was assigned to a permanent duty station.  He completed basic training and AIT and graduated as outstanding trainee and honor graduate from the school and received an accelerated promotion to private first class pay grade 
E-3.  When he reported to his permanent duty station at Fort Benning, Georgia base housing was not available for his family because he was not an E-4 with more than 2 years time in service.  He could not drive his automobile on base because it could not pass the rigorous mechanical inspection.  He was often sent to the field for training that would last 18 days or more and he was forced to leave his family to their own devices.  He received $377.00 per month for base pay, he received $105.00 per month for housing allotment and he did not receive any help with food expenses.  He sought the assistance of a civilian lawyer in preparing for a hardship discharge and he incurred legal fees.  His commander told him to stop whining and get out of his office when he submitted the request for a hardship discharge.  The commander put his request in the trash can.  Realizing that he was not going to get help with his situation he waited until his commander forgot and he requested leave.  He left Georgia and got a job in Wilmington Ohio making more than twice the money he made in the Army.  He eluded the FBI for 10 months and he was finally caught and spent more than 30 days in a holding cell.  He adds that he was told if he was willing to spend another 30 days or so in the stockade he would get a hardship discharge.  However, his wife had already suffered too much so he declined the offer and walked back to Ohio.  He received a discharge under other than honorable conditions and all he is asking for is justice.  He does not want any benefits and he would die before taking them.  All he wants is to have his case reviewed and to receive a discharge that does not blame him for what happened.  He was a kid and believed what he was told.  

3.  The applicant provides a self-authored letter 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 enlisted in the Regular Army on 16 July 1973, for a period of 
3 years.  At the time, he was 21 years of age.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 64C (Motor Transportation Operator).  The applicant was promoted to pay grade E-3 on 19 October 1973. 

3.  On 14 May 1974, the applicant accepted nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a forfeiture of 3 days pay (2 days suspended for 30 days),
7 days restriction (suspended for 30 days) and 7 days of extra duty.

4.  On 11 June 1974, the applicant accepted NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-2 (suspended for 30 days), 7 days of extra duty and 
7 days of restriction (extra duty and restriction were to run concurrently).  

5.  On 11 July 1974, the applicant was reported for being absent without leave (AWOL); he was apprehended by civilian authorities on 25 February 1975.    

6.  On 11 March 1975, a Report of Medical Examination found the applicant fit for retention or separation from service.  

7.  On 12 March 1975, court-martial charges were preferred against the applicant for being AWOL from 11 July 1974 to 24 February 1975.  

8.  On 14 March 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under conditions other than honorable and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, the request was made of his own free will and he was not coerced into making the request.  The applicant understood that by submitting the request for discharge, he acknowledged that he was guilty of the charge against him.  He also acknowledged 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.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.  The applicant did not submit a statement in his own behalf.

9.  On 17 March 1975, the applicant’s unit commander recommended approval of the applicant’s request for a discharge under the provision of Army Regulation 635-200, Chapter 10 with an Undesirable Discharge Certificate.  

10.  On 20 March 1975, the separation authority approved the applicant’s request, directed that the applicant be reduced to the lowest enlisted grade, that he be discharged under the provisions of Army Regulation 635-200, Chapter 
10, for the good of service and that he be furnished an Undesirable Discharge Certificate.  On 1 April 1975, the applicant was discharged accordingly.  The discharge document (DD Form 214) he was issued confirms he completed a total of 1 year, 1 month and 2 days of creditable active military service during this enlistment period and he had 229 days of time lost.  

11.  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.  

12.  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.

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and the applicant’s financial and family problems were unfortunate.  However, there is no evidence in his record nor did the applicant provide any evidence that shows he submitted an application for a hardship discharge or that he requested help from a chaplain, his superiors or anyone before going AWOL.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who served and successfully completed their military service commitment.  Therefore, there is insufficient evidence to support the applicant’s contentions.

2.  However, the evidence of record confirms that the applicant went AWOL for 229 days, and he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  The discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service clearly did not support the requested relief.  

3.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the foregoing, there is no basis for granting the applicant’s request. 

5.  In order to justify correction of a military record the evidence must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The evidence submitted did not 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)                                         AR20080006860



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ABCMR Record of Proceedings (cont)                                         AR20080006860



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