IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080006998 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was led to believe that by taking a chapter 10 he would be eligible to receive benefits, but now that he is up in age he can not get medical benefits.

3.  The applicant provides no additional documentation in support of this case.

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 on 23 August 1966 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 76Y (Supply Specialist).  The applicant was honorably discharged on 24 September 1967 and immediately reenlisted on 
24 September 1967.  He was honorably discharged on 29 April 1970 and immediately reenlisted on 30 April 1970.  He was honorably discharged on 
21 June 1971 and immediately reenlisted on 22 June 1971.

3.  On 31 July 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of failing to be at his appointed place of duty.

4.  On 27 December 1972, the applicant was convicted, pursuant to his plea, by a special court-martial of striking a Specialist Five.  His sentence consisted of reduction to the rank of Corporal (CPL) (suspended 4 months) and a forfeiture of $75.00 per month for 2 months.

5.  Evidence of record shows that the applicant was confined by civil authorities from 12 March 1972 through 28 March 1972, and he was tried and convicted of credit card fraud and a speeding violation.

6.  The applicant's court-martial charge sheet is not available.  However, an OSA Form 62A (Army Discharge Review Board Brief) shows the applicant was charged with possession of 246 syringes and 243 hypodermic needles, failing to obey a general regulation by withholding shelter and support of his wife, committing physical assault upon his wife, and committing sodomy with his wife by force and without consent. 

7.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 2 February 1973 shows that he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of for the good of the service with an undesirable discharge and service characterized as under other than honorable conditions.  The applicant completed a total of 6 years, 5 months, and 16 days of creditable active service with 22 days of lost time due to being AWOL and in civil confinement.

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 12 September 1975, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB voted that the applicant's discharge was proper and equitable.


9.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.   

10.  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 requests that his under other than honorable conditions discharge be upgraded.  However, his records show that he received one Article 15, one special court-martial, had one instance of being AWOL, and had one instance of civil confinement and conviction during his last enlistment, in addition to the offenses for which he was discharged.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx  __  __xx ___  __xx ___  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.




 _   xxxxxxxx ____
       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)                                         AR20080006998



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006998



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1