IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080008431 


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 undesirable discharge to a general discharge.  

2.  The applicant states that he was confined after he departed his unit in an absent without leave (AWOL) status and was offered a discharge from the Army in 24 hours, and that he was not aware of the type of his discharge.  He would like to get Department of Veterans Affairs (DVA) benefits.

3.  The applicant did not provide any additional documentary evidence 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 he enlisted in the Regular Army for a period of 3 years on 15 September 1969.  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 (Temporary).  

3.  The applicant's records also show he served in the Republic of Vietnam from 15 February 1970 to 1 November 1971.  His awards and decorations include the Vietnam Service Medal with four bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16 and M-14) and Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  On 8 November 1971, the applicant departed his unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 7 December 1971.  He remained in this status until he returned to military control on 19 May 1973.  

5.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the applicant’s discharge orders (Special Orders Number 111, dated 7 June 1973, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky), show the applicant was reduced to the rank/grade of private (PVT)/E-1 and that he was discharged in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations) with an Undesirable Discharge Certificate.

6.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200, with an undesirable discharge, characterized as under conditions other than honorable.  This form further shows he completed 2 years, 2 months, and 17 days of creditable military service and had 312 days of lost time prior to normal expiration of term of service (ETS) and 247 days of lost time subsequent to his normal ETS.

7.  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.

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, 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.  However, at the time of the applicant’s separation, an undesirable discharge was normally considered appropriate.

9.  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 undesirable discharge should be upgraded to a general discharge. 

2.  The applicant’s record is void of the facts and circumstances surrounding his discharge.  However, it appears that subsequent to his extended AWOL, the applicant was charged with the commission of an offense 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.  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 this requirement.  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, he is not entitled to a general discharge.

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative to inquire about eligibility for and/or entitlements to VA benefits. 
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.


															XXX
      ______________________
               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)                                         AR20080008431



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ABCMR Record of Proceedings (cont)                                         AR20080008431



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