IN THE CASE OF:	  

		BOARD DATE:	        28 AUGUST 2008

		DOCKET NUMBER:  AR20080008484 


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 an honorable discharge.

2.  The applicant essentially states that he was told by a Judge Advocate General's Corps officer that he would receive a hardship discharge under honorable conditions, and feels that he was not properly discharged.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and Standard Form 180 (Request Pertaining to Military Records) in support of this 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 military records show that he was inducted into the Army of the United States on 12 November 1969.  He completed basic combat training at Fort Benning, Georgia, then was reassigned to Fort Eustis, Virginia, which was generally about 12 miles from his hometown of Williamsburg, Virginia.

3.  On 24 April 1970, the applicant was convicted by a special court-martial for absenting himself without authority from his unit from on or about 19 February 1970 until 27 February 1970, from on or about 2 March 1970 until 3 March 1970, from on or about 9 March 1970 until 25 March 1970, and from on or about 
30 March 1970 until 2 April 1970.  He was sentenced to reduction from private/
E-2 to private/E-1, confinement at hard labor for 15 days, and a forfeiture of $75.00 pay per month for 2 months.  His sentence was approved on 8 June 1970.

4.  On 14 August 1970, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about 
8 May 1970, and remaining so absent until 24 May 1970, and for absenting himself without authority from his unit on or about 15 June 1970, and remaining absent until 31 July 1970; offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  

5.  On 9 September 1970, while the applicant was on pass, he was apprehended by civil authorities for reckless driving, carrying a concealed weapon, and forgery. After serving 60 days of a 90-day sentence, the applicant was returned to military control on or about 12 November 1970.

6.  On 18 November 1970, the applicant voluntarily requested discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  He acknowledged that he had not been subjected to coercion with respect to his request for discharge, and that he had been advised of the implications that were attached to it.  

7.  In his request for discharge, the applicant also acknowledged that he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged he understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now named the Department of Veterans Affairs), and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit statements in his own behalf, but acknowledged that he had been afforded the opportunity to consult with appointed counsel prior to making his request for discharge, and also afforded the opportunity to consider the wisdom of submitting a request at that time after consulting with his counsel, who had fully advised him in this matter.

8.  On 2 December 1970, the Commander, Special Processing Battalion (Provisional), U.S. Army Engineer Center and Fort Belvoir, Fort Belvoir, Virginia prepared a memorandum for record.  This document essentially stated, in pertinent part, that the applicant stated that he went absent without leave (AWOL) to assist his mother in supporting his 11 younger brothers and sisters, that he would not accept rehabilitation or return to duty, and that he was prepared to accept an undesirable discharge.

9.  On 21 December 1970, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and essentially directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate).  On 29 December 1970, the applicant was discharged accordingly.  

10.  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.

11.  The applicant essentially stated that he was told by a Judge Advocate General's Corps officer that he would receive a hardship discharge under honorable conditions, and he feels he was not properly discharged.

12.  The applicant's DD Form 398 (Statement of Personal History) does not show that the applicant declared that he had any brothers or sisters at the time of his induction. 

13.  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 trail by court-martial.  At the time, a discharge under other than honorable conditions was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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 an honorable discharge. 

2.  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.

3.  The applicant's contention that he was told by a Judge Advocate General's Corps officer that he would receive a hardship discharge under honorable conditions was considered, but not found to have any merit.  There is no evidence in the applicant's military records, and the applicant failed to provide any evidence which supports his contention.

4.  The fact that the applicant, at the time, stated that he went AWOL to assist his mother in supporting his 11 younger brothers and sisters was also considered.  However, there is no evidence in the applicant's military records that he had 
11 siblings.  Even if the applicant's contention regarding family problems was in fact true, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows he requested assistance from his chain of command or external advocacy offices such as the chaplain.

5.  It is clear that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law or regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.
6.  Based on the applicant's record of indiscipline, which included a court-martial conviction, repeated incidents of AWOL, apprehension and confinement by civil authorities, carrying a concealed weapon, and forgery, 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 either an honorable or general discharge.

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)                                         AR20080008484



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ABCMR Record of Proceedings (cont)                                         AR20080008484



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