IN THE CASE OF:	  

		BOARD DATE:	       31 July 2008

		DOCKET NUMBER:  AR20080008443 


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 to a general under honorable conditions discharge.  

2.  The applicant states that he was offered a Chapter 13 discharge, but he accepted a Chapter 10 due to the hostile living conditions in the stockade.  He states that his life was in danger at the time and this was the quickest way out.  

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 18 October 1972.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 64C (motor transport operator).  His highest grade held was private first class, E-3.  

3.  On 17 April 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 9 April 1973 to 17 April 1973.  His punishment consisted of a forfeiture of $79.00 pay for one month, 14 days extra duty, and 14 days restriction.  

4.  On 16 May 1973, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty on two separate occasions.  His punishment consisted of a reduction to private, E-1 (suspended for 90 days); a forfeiture of $70.00 for one month; and 14 days extra duty.  

5.  On 14 August 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL from 7 August 1973 to 13 August 1973.  His punishment consisted of a reduction to private, E-1; a forfeiture of $71.00 pay for one month; 14 days extra duty; and 14 days restriction.

6.  On 13 March 1974, charges were preferred against the applicant for being AWOL from 28 February 1974 to 13 March 1974.

7.  On 2 April 1974, an additional charge was preferred against the applicant for being AWOL from 1 April 1974 to 2 April 1974.

8.  The applicant's discharge packet is not available.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 20 May 1974 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 and 6 months of active military service with 33 days of lost time due to AWOL.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 3-7b, 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 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 record shows he received three Article 15s for failing to go to his appointed place duty and for being AWOL. 

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 have been noted; however, he has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to 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)                                         AR20080008443



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008443



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1