IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080007015 


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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that it was his understanding that he would receive an honorable discharge.

3.  The applicant provides his General Discharge Certificate, dated 3 March 1970.

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 28 June 1968 for a 3-year term of service and successfully completed basic training.

3.  On 14 August 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 8 August 1968 through 13 August 1968.  He subsequently completed advanced individual training and was awarded military occupational specialty 51A (Construction and Utilities Worker).

4.  A DD Form 458 (Charge Sheet), dated 20 January 1970, shows charges were preferred against the applicant for being AWOL for the periods 20 November 1968 through 5 January 1970 and 27 January 1970 through 2 February 1970.

5.  On 9 February 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

6.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs]; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit statements in his behalf.

7.  On 3 March 1970, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued a General Discharge Certificate.  On 3 March 1970, the applicant was discharged with a general under honorable conditions discharge.  He completed a total of 5 months and 16 days of creditable active service with 444 days of lost time due to AWOL.

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.  At the time, an undesirable discharge was normally considered appropriate.

9.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that it was his understanding that he would receive an honorable discharge.  There is no evidence in the applicant's records and he has not provided any evidence that shows he should have received an honorable discharge.  However, his record shows that he received one Article 15 and had two instances of AWOL, one of which was lengthy.  He had completed 5 months and 16 days of service on his 3-year term of service with a total of 444 days of lost time due to being AWOL.  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 an honorable discharge.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.

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.



	_   xxxxxxxxxx ____
      	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)                                         AR20080007015



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ABCMR Record of Proceedings (cont)                                         AR20080007015



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