IN THE CASE OF:
BOARD DATE: 19 August 2008
DOCKET NUMBER: AR20080008501
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 discharge be upgraded.
2. The applicant states that he was a good Soldier until he went absent without leave (AWOL). He was young and immature at that time, but he is now more responsible.
3. The applicant provides his separation document (DD Form 214).
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 applicants military records show that he enlisted in the Regular Army on 21 November 1967, was awarded the military occupational specialty of radio operator, served in Europe, and was promoted to pay grade E-4. The applicants records show that he was given a certificate of achievement and a letter of commendation during this period.
3. The applicant immediately reenlisted on 30 December 1969. He had served
2 years, 5 months, and 14 days of active duty prior to his reenlistment.
4. The applicant served with the 101st Division (Airmobile) in Vietnam from 9 March 1970 to 30 January 1971. During that time he was awarded both the Army Commendation Medal (ARCOM) and Bronze Star Medal (BSM) for meritorious service.
5. The applicant accepted nonjudicial punishment (NJP) twice, once on 2 March 1970 for being AWOL from 24 to 26 February 1970, and once on 17 June 1971 for failure to report at the prescribed time to his appointed place of duty.
6. The applicant was then absent without leave (AWOL) from 10 August to 17 November 1971.
7. The applicants records do not contain his discharge packet. However, he was issued an Undesirable Discharge Certificate on 10 December 1971 in pay grade E-1 under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He had served 1 year, 8 months and 1 day of active duty during this period, for a total of 4 years, 1 month and 15 days of active duty.
8. The applicants DA Form 20, Enlisted Qualification Record, shows that the applicant was in pay grade E-4 prior to his discharge.
9. 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. When a Soldier is issued an undesirable discharge, the Soldier is automatically reduced to the lowest enlisted grade (pay grade E-1).
DISCUSSION AND CONCLUSIONS:
1. The Board begins its review of cases with a presumption of regularity, that what the Army did was correct. As such, it is presumed that the applicants discharge for the good of the service was processed in accordance with the regulations in effect at the time and the applicants substantial rights were protected throughout the process.
2. It is noted that the applicant served meritoriously for a period which exceeded a normal 3-year enlistment, and received letters of commendation, certificates of achievement, and both an ARCOM and BSM. It is also noted that the applicant served in both Europe and Vietnam for a total of over 4 years of active duty.
3. However, the applicant requested discharge in lieu of court-martial and acknowledged at that time that he could receive an undesirable discharge and the effects of an undesirable discharge. By making this request, he avoided the possibility of serving a sentence of confinement and the possibility of a punitive discharge.
4. While the applicant may now regret his choice to request discharge in lieu of court-martial, this does not establish a basis for upgrading a properly issued discharge.
5. In view of the foregoing, there is no basis to grant the applicants request.
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) AR20080008501
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