IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009047 


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 discharge under other than honorable conditions be upgraded to an honorable or general discharge. 

2.  The applicant essentially believes that his discharge should be upgraded because he was very young and not mature enough for the responsibility of being in the military.  He also states that he is very ashamed of his actions at that time, and prays that his request will be granted.

3.  The applicant provides no additional evidence 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 enlisted in the Regular Army on 5 January 1976.  He completed basic training at Fort Knox, Kentucky and advanced individual training at Fort Sill, Oklahoma and was awarded military occupational specialty 13B (Cannon Crewmember).  He was then reassigned to Fort Polk, Louisiana in May 1976. 

3.  On 26 July 1976, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 1 June 1976, and remaining so absent until on or about 26 June 1976.  His punishment consisted of forfeiture of $150.00 pay per month for 2 months and extra duties with restriction for 30 days.  The applicant was authorized a break in punishment to attend a court hearing in the State of Wisconsin on 11 August 1976, but his punishment was scheduled to continue upon his return.

4.  On 3 June 1977, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about 
7 August 1976, and remaining so absent until on or about 13 August 1976, absenting himself without authority from his unit on or about 1 September 1976, and remaining so absent until on or about 19 December 1976, and for absenting himself without authority from his unit on or about 10 January 1977, and remaining so absent until on or about 20 May 1977; offenses punishable under the UCMJ with a punitive discharge.  

5.  On or about 3 June 1977, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will, and had not been subjected to coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

6.  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 further 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 understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf, and although only partially legible, it appears that he essentially stated that he would like to get out because he could not handle all the rules and regulations.  He also stated that he enlisted because some of his friends did, and that he thought it would be different.  He further stated, in effect, that he went absent without leave because his sergeant kept hassling him, and that he got tired of it.  Additionally, he essentially stated that he did not have a very good opinion about the Army anymore, and that he still would not like it if he were not discharged.

7.  On 20 June 1977, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished a DD Form 794A (Discharge Certification Under Other than Honorable Conditions).  He also essentially directed that the applicant be reduced to the lowest enlisted grade effective that date.  On 29 June 1977, the applicant was discharged accordingly.  

8.  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.

9.  The applicant essentially believes that his discharge should be upgraded because he was very young and not mature enough for the responsibility of being in the military.  He also stated that he is very ashamed of his actions at that time, and prays that his request will be granted.

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 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.

11.  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.

12.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable or general discharge.

2.  The applicant's contention that he was young and immature at the time was considered.  Records show that the applicant was approximately two months shy of his seventeenth birthday at the time he first went absent without leave, and was approximately two months shy of his eighteenth birthday at the time he voluntarily requested discharge.  However, the applicant had the maturity necessary to successfully complete basic and advanced individual training, and there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  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.

4.  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 and 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.

5.  Based on the applicant's record of indiscipline, which included multiple offenses of absenting himself without authority from his unit, 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 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)                                         AR20080009047



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ABCMR Record of Proceedings (cont)                                         AR20080009047



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