IN THE CASE OF:	  

		BOARD DATE:	  	   12 August 2008

		DOCKET NUMBER:  AR20080007646 


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 undesirable discharge be upgraded.  

2.  The applicant states, in effect, he was raised by his mother who was the sole provider for the family.  When he turned 17 years old, he decided to join the Army to help provide for the household.  He desired to complete his tour but he became depressed because he had never been away from home or his mother.  He had started to miss drill and was eventually absent without leave (AWOL).  He also started drinking.  He states he was AWOL until the Army decided to give him a dishonorable discharge.  He further states that situations became stressful and sometimes unbearable and many of his physical conditions that caused severe pain went unnoticed.  His ailments were documented on his Standard Form 93 (Report of Medical History).  He had been hospitalized and had surgery on his legs, which is documented on his Report of Medical History.

3.  The applicant provides statements in support of his request for an upgrade.  

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 21 June 1972 for a period of four years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  His highest grade held was private first class, E-3.  

3.  On 19 December 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for leaving his appointed place of duty and failing to go his appointed place of duty.  

4.  On 2 April 1973, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.  

5.  On 5 March 1974, the applicant was convicted by a special court-martial of being AWOL from 11 December 1973 to 17 December 1973 and from 21 December 1973 to 21 January 1974.  He was sentenced to a reduction to private, E-1, confinement at hard labor for 2 months, and a forfeiture of $100.00 pay for 2 months.  

6.  The applicant’s Charge Sheet and request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10 are not available.  

7.  His service personnel records contain a DA Form 3836 (Notice of Return of U.S. Army Members from Unauthorized Absence) which shows he was AWOL on 3 June 1974 and returned to military control on 18 June 1975.

8.  On 20 June 1975, the applicant underwent a medical examination for separation.  On the Report of Medical Examination, the applicant indicated at that “I’m in good Health.”  The examining physician indicated the applicant was qualified for separation with a physical profile of 111111.

9.  The applicant's discharge packet is not available.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 3 July 1975 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of trial by court-martial with an undesirable discharge.  He completed 1 year, 11 months, and 28 days of active military service with 380 days of lost time due to AWOL and confinement.  

10.  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 undesirable discharge.

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.  In the absence of the applicant's complete chapter 10 discharge proceedings, 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, is presumed to have been administratively correct and in conformance with applicable regulations.  

2.  The applicant’s service records show he received two Article 15s and one special court-martial.  It appears the applicant’s overall record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a honorable or general discharge.

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record of service.

4.  The applicant's contentions were noted.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable or general under honorable conditions.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __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.




      ______xxxx  _______   ___
               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)                                         AR20080007646





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ABCMR Record of Proceedings (cont)                                         AR20080007646



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