IN THE CASE OF:	  

	BOARD DATE:	  26 August 2008

	DOCKET NUMBER:  AR20080008362 


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 undesirable discharge be upgraded to honorable.   

2.  The applicant states, in effect, that he was told by the Army psychologist that he would receive a general discharge based on his psychological problems.  The applicant states that when the beer machines were put in the barracks he began drinking.  He was assigned to Fort Gordon, Georgia, for military police training.  He then completed the Basic Airborne Course and was assigned to Fort Bragg, North Carolina.  This is where his troubles began.  Marijuana was found in the barracks where he and three others lived.  He was punished and transferred to an infantry unit.  The men there knew he had been a military policeman and hated him.  He went absent without leave (AWOL), was apprehended and placed in the stockade.  He kept escaping and getting caught.  When in the stockade at Fort Ord, his wisdom tooth was pulled.  He was only given aspirin for the pain.  Then he was kicked out of the stockade and told that his discharge would be mailed to him.  He had to hitchhike home with no money.  He did not even have shoes.  His parents got him a plane ticket and he went to the Salvation Army for a pair of shoes so that he could get on the plane.  He was again jailed for an outstanding warrant and was released to the Long Beach Naval Brig.  Finally he was discharged and given an Undesirable Discharge Certificate.  Since then he has been in and out of prison.  He was a mentally challenged person who was also an alcoholic and drug addict.  He has the hepatitis C virus.  His liver is so far gone that he has developed blistering lesions.  He has a wife and mentally challenged son who are about to be kicked out on the street and no one is willing to help.  He was proud to have served in the Army and proud to have been in the 82nd Airborne.  He just wants some help with his issues and his discharge upgraded so that he can at least die with a little pride.

3.  The applicant provides no supporting documentation. 

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.  On 30 July 1971, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 95B1O (Military Police).  He also completed the Basic Airborne Course.

3.  On 27 January 1972, the applicant was assigned for duty as a military policeman with the 82nd Military Police Company, Fort Bragg, North Carolina.  He was subsequently assigned to the 2nd Battalion, 325th Infantry Regiment, as a rifleman.

4.  Records show that the applicant was AWOL during the periods from 30 March to 1 May 1972; 9 May to 4 June 1972; and 3 to 15 July 1972.  There is no available evidence showing that he received punishment for any of these periods of AWOL.

5.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 23 August 1972, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions. He had completed 10 months and 10 days of creditable active duty and had 
74 days of lost time.

6.  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.

7.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

8.  Under the Manual for Courts-Martial, the maximum punishment allowed for violation of Article 86, for AWOL of more than 3 days but not more than 30 days is confinement for 6 months and forfeiture of two-thirds pay per month for 
6 months.  The UCMJ also provides, in pertinent part, that if an accused is found guilty of two or more offenses for none of which dishonorable or bad-conduct discharge is authorized, the fact that the authorized confinement without substitution for these offenses is 6 months or more will, in addition, authorize bad-conduct discharge and forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  Notwithstanding the applicant's implied assertion that it would be unjust not to upgrade his discharge, there is no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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




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.





__________ _    _______   ___
       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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080008362



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