IN THE CASE OF:	

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080008407 


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, an upgrade of his discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he was treated unfairly and he does not agree with the status that was given to him.

3.  In a letter the applicant addressed to the Board, he states, in effect, that at the time of his discharge, he was in a situation that he feels was brought up by two sergeants that were over him.  He feels that he was put in an unfair situation and was set up for something that he did not do.  He feels he was traumatized due to the events that took place and he was not being rationale.  He found himself being a young man with a family who he felt he had to take care of.  He ended up staying at home a longer time than was allotted to him.  He came to his senses and turned himself in because he knew it was the right thing to do.

4.  The applicant adds that he feels that the Board should consider his application in his best interest because he is trying to work for the VA (Department of Veterans Affairs). 

5.  In support of his request, the applicant provides a copy of his DD Form 214, Report of Separation from Active Duty; a copy of his resume; and the letter he addressed to the Board.

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 record shows he enlisted in the US Army Reserve, Delayed Enlistment Program, on 24 September 1977.  He enlisted in the Regular Army on 25 October 1977.  He successfully completed his basic combat and advanced individual training (AIT) and on completion of his AIT, he was awarded the military occupational specialty (MOS) 13B (Cannon Crewman).

3.  The applicant was assigned to Fort Sill, Oklahoma, as his first duty station.  On 1 March 1978, while at Fort Sill, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying the order of a noncommissioned officer on 26 February 1978.  The imposed punishment was restriction and extra duties for 10 days.  The applicant did not appeal the punishment.

4.  The applicant's records document the highest rank and pay grade he held on active duty was Private, E-2.  The record shows he achieved this rank and pay grade on 25 April 1978.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

5.  The applicant was charged with failing to go at the time prescribed to his appointed place of duty on 4 March 1978.  The applicant pled not guilty to the charge and on 27 April 1978, a motion for a finding of not guilty was granted.

6.  On 10 May 1978, Orders 130-136 was published by Headquarters, US Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, reassigning the applicant to the 21st Replacement Detachment in Germany.  The applicant had a will proceed date of 15 May 1978 and an availability date for transportation to Germany of 30 May 1978.

7.  The applicant was reported absent without leave on 1 June 1978 and was dropped from the rolls on 30 June 1978.  He returned to military control and was assigned to the US Army Personnel Control Facility, Fort Bragg, North Carolina, on 16 August 1978.

8.  On 29 August 1978, court-martial charges were brought against the applicant for absenting himself from his unit, the 21st Adjutant General Replacement Detachment, on 1 June 1978 and remaining so absent until 16 August 1978.

9.  On 30 August 1978, the applicant voluntarily submitted a request for discharge for the good of the service.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the Uniform Code of Military Justice (UCMJ), which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request.

10.  The applicant stated he understood that if his request were accepted, he could be discharged under other than honorable conditions (UOTHC) and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He understood that as a result of issuance of such a UOTHC discharge, he could be deprive of all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

11.  The applicant stated, that prior to completing his request for discharge for the good of the service, he had been afforded the opportunity to consult with appointed counsel or counsel of his own choice.  On 30 August 1978, the applicant received counsel and acknowledged that the decision to submit a request for discharge for the good of the service was his own.

12.  The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  The applicant submitted a hand-written statement in his own behalf on 30 August 1978.  In this hand-written statement, the applicant stated, in effect, that he wanted a Chapter 10 discharge because he was unable to cope with the military way of life.  He felt there were a lot of prejudiced people running the Army at different posts and at different units.  He stated that he had tried to get out of the service 

during basic training and again while he was undergoing his advanced individual training but they would not listen to him or try to help him with his problems.  His daughter was suffering from asthma and his wife was suffering the effects of high blood pressure and a multiple of other problems.  He got some information from the chaplain on a hardship discharge and he started getting the paperwork together even though there were some serious problems back home.  In the meantime, he received an Article 15 and he was put in for a second one, this one being of field-grade.  He did not accept the Article 15 and decided to fight it.  He got himself a lawyer and was required to face a court-martial.  He won the case and because of this when he submitted his request or a hardship discharge, it was disapproved.  He was put on orders to Germany and he didn't go.  He tried for a compassionate reassignment and it was also disapproved.  He concluded his statement by stating that he wanted a general discharge because he didn't deserve an under other than honorable conditions discharge.  He tried the right way but they would not help him, so he had no other choice.

13.  The applicant underwent a mental status evaluation on 30 August 1978.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was level, his thought process was clear, and his thought content was normal.  The mental status evaluator found him to be free from significant mental illness, mentally responsible, able to distinguish right from wrong, considered to have the mental capacity to understand and participate in board proceedings, and met the retention standards of AR 40-501, chapter 3.

14.  On 31 August 1978, the applicant's unit commander recommended approval of his request for discharge for the good of the service in lieu of court-martial.  The applicant stated to him, in effect, that his absence without leave was a result of severe family problems.  He contended that he was married when he enlisted and that family separation had caused him new problems.  He further stated that he could not cope with the military and his family problems at the same time.  He further stated that if he were ordered to another duty station, he would go absent without leave again.

15.  On 31 August 1978, the Commander, 1st Corps Support Command, recommended approval of the applicant's request and recommended issuance of an UOTHC discharge.

16.  On 20 September 1978, the approving authority approved the applicant's discharge for the good of the service.  He directed that the applicant be issued an UOTHC discharge.

17.  The applicant was discharged with an UOTHC discharge, in the rank and pay grade of Private, E-1, on 5 October 1978, under the provisions of Army Regulation (AR) 635-200, Chapter 10, for the good of the service, in lieu of court-martial.

18.  On the date of his discharge, the applicant had completed 8 months, and 26 days creditable active military service, with 110 days time lost.

19.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

20.  AR 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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  An UOTHC discharge is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

21.  AR 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement. 

2.  The available evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service-in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive 
discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

3.  The available evidence indicates that all requirements of law and regulation were met and it is believed that the rights of the applicant were fully protected throughout the separation process.

4.  The evidence shows the applicant was discharge under the provisions of AR 635-200, Chapter 10.  The characterization of service for this type of discharge is normally UOTHC and it is believed the applicant was aware of that prior to requesting discharge.  It is therefore believed that the reason for discharge and the characterization of service were both proper and equitable.

5.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  It is apparent the applicant desires to have his under other than honorable conditions discharge upgraded to enable him to gain employment with the Department of Veterans Affairs; however, the Board does not grant upgrades of discharges for the purposes of qualifying applicants for employment or for other benefits.

7.  The applicant’s service personnel records were searched for evidence that he attempted to get a hardship discharge or that he applied for a compassionate reassignment before he resorted to absenting himself without leave to solve his personal problems.  However, no evidence was found that he applied for either a hardship discharge or for a compassionate reassignment.

8.  The applicant stated that he was in a situation that he feels was brought up by two sergeants that were over him that put him in put in an unfair situation and he was therefore set up for something that he did not do; however, he did not clearly explain what the situation was and how it put him in an unfair situation to do something that he did not want to do.

9.  The applicant stated he felt he was traumatized due to the events that took place and he was not being rationale; however, the results of the mental status evaluation that he underwent do not support his contention.  He states that he 
found himself being a young man with a family that he felt he had to take care of and, rather than going to Germany, he ended up staying at home a longer time than was allotted to him and when he came to his senses, he turned himself in because he knew it was the right thing to do.

10.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions, 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)                                         AR20080008407



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ABCMR Record of Proceedings (cont)                                         AR20080008407



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