IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080007280 


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 an upgrade of his discharge. 

2.  The applicant states, in effect, that he wishes his character of service be changed to honorable. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 12 April 1973; and three character reference letters, 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's records show that he enlisted in the Regular Army for a period of 2 years on 29 January 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36K (Field Wireman).   The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.  

3.  The applicant’s records further show he was awarded the National Defense Service Medal.  His records do not show any significant acts of valor during his military service.

4.  On 26 May 1967, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one specification of being absent without leave (AWOL) from on or about 24 May 1971 through on or about 26 May 1971.  His punishment consisted of reduction to private (PVT)/E-1 and forfeiture of $30.00 pay for one month. 

5.  On 19 July 1972, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 17 August 1972.  He remained in this status until 31 January 1973, when he was apprehended by civil authorities and was returned to military control at Fort Hamilton, New York.  

6.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his DD Form 214 shows that he was discharged for the good of the service, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations), with an undesirable discharge.  This form further confirms the applicant completed 1 year, 7 months, and 25 days of creditable active military service, and had 204 days of lost time due to AWOL.  

7.  The applicant submitted three character reference letters from neighbors who have known him for many years.  The neighbors comment on the applicant’s honesty, generosity, kindness, and assistance to others.  

8.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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 contends that his discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, it appears that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  It is presumed that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  



4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

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)                                         AR20080007280



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ABCMR Record of Proceedings (cont)                                         AR20080007280



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