IN THE CASE OF:
BOARD DATE: 12 August 2008
DOCKET NUMBER: AR20080008432
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 a discharge upgrade.
2. The applicant states he overstayed his very first leave, but returned to military control in the 23rd hour of the 30th day [of his absence]. He had no idea that a "gung ho" commander would make an example of him and shatter his dream of becoming a general.
3. The applicant provides no additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant served in the Regular Army (RA) from 9 August 1977 through 14 February 1978. His DD Form 214 (Report of Separation From Active Duty) shows he was separated with an under other than honorable conditions (UOTHC) discharge under the provisions of chapter 10, Army Regulation (AR) 635-200, by reason of for the good of the service, in lieu of trial by court-martial.
3. On 27 January 1978, the applicant was charged with violating Article 86, Uniform Code of Military Justice (UCMJ), by on/about 0001 hours, 27 December 1977, without authority, absenting himself (AWOL) from his unit until on/about 2348 hours, 26 January 1978.
4. On 30 January 1978, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service. He stated that he understood the nature and consequences of a UOTHC discharge that he might receive. He declined to submit a statement in his own behalf.
5. On an unknown date, the approving authority approved the applicant's request for discharge in lieu of trial by court-martial and directed he be issued a UOTHC discharge.
6. On 14 February 1978, the applicant was separated with a UOTHC discharge. He had 5 months and 6 days of creditable service and 30 days of lost time due to being AWOL.
7. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.
8. 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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests a discharge upgrade.
2. With less than 6 months of active duty service, the applicant went AWOL for 30 days. By so doing, he demonstrated that he did not respect the Army's rules and regulations and proved himself unworthy of a military career.
3. The applicant's voluntary request for separation under the provisions of AR 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.
4. The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.
5. 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 this requirement.
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.
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