IN THE CASE OF:	

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080009197 


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 discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that he was led to believe he would be receiving a GD.  He also states that he finished high school, that he has been a union carpenter for over 30 years, and that he is married and has 1 child. 

3.  The applicant also contends that he has been a good citizen since his discharge; that his ability to serve was impaired by his youth and immaturity; that his use of alcohol impaired his ability to serve; that his ability to serve was impaired by his deprived background; that his parents were divorced and his mother beat and abused him; and that he tried to apply for a hardship discharge but was unfairly denied when his grandparents passed away.  He also tried to get a hardship discharge to take care of his siblings that his mother was abusing.

4.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter of support.

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.  On 22 December 1969, the applicant enlisted in the Regular Army for a period of 3 years.  He was 17 years old at the time of his enlistment and he enlisted with his father's consent.  He did not complete advanced individual training.  He attained the grade of private/E-1.

3.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 2 separate occasions for the offenses indicated:  27 January 1970, for wrongfully using provoking words to his squad leader; and 4 February 1970, for being absent without leave (AWOL) from 1-2 February 1970 and breaking restriction.

4.  On 25 June 1970, a special court-martial convicted the applicant of 3 periods of AWOL (2 - 19 May 1970; 27 May - 1 June 1970; and 6 - 8 June 1970).  The resultant sentence included confinement at hard labor for 5 months and a forfeiture of $82.00 pay per month for 3 months. 

5.  A 12 July 1970, Criminal Investigation Division (CID) Report of Investigation revealed that the applicant was arrested by civilian authorities in Junction City, Missouri, for driving a stolen vehicle.  Before the arrest, the applicant had fled a gas station in the stolen car without paying for his gasoline.  The applicant was confined in the Boone County Jail for arraignment on the charge of auto theft.  He was sentenced to one year probation for auto theft, effective 30 November 1970.

6.  On 25 February 1971, the applicant was charged with 2 periods of AWOL
(11 July - 16 December 1970 and 23 January - 5 February 1971). 

7.  On 25 February 1971, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged 


under other than honorable conditions and furnished an Undesirable Discharge 
Certificate, and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

8.  The applicant submitted a statement in his own behalf indicating that he first went AWOL while in basic combat training.  On 7 July 1970, while in AWOL status he was arrested by the Junction City, Kansas, police for joy riding and was jailed for 6 months.  He was released to Fort Riley, Kansas, but went AWOL again and was apprehended in Detroit, Michigan, and sent to Fort Leonard Wood, Missouri.  He jumped off the truck that was on its way to the Personnel Confinement Facility and was picked up in St. Louis.  He was then placed in the stockade.  He indicated he only had 10 years of schooling, and had tried to get his GED, but had failed one time.  He had a girlfriend at home, and a baby girl, and they planned on getting married when he got home.  He indicated that he was requesting a discharge because he was not able to adjust to military life.
 
9.  On 25 June 1971, the separation authority approved the applicant's request for discharge and directed he be issued an Undesirable Discharge. 

10.  Accordingly, the applicant was discharged on 9 July 1971 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions on his DD Form 214 (Report of Separation from Active Duty) and he was issued an Undesirable Discharge Certificate.  He was credited with 4 months and 11 days of total active service and had 433 days of lost time due to AWOL and military confinement.  

11.  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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate.  However, at the time of separation, an undesirable discharge was normally considered appropriate.


12.  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.

13.  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.

14.  On 30 January 1975, the Army Discharge Review Board considered the applicant's application for an upgrade of his discharge and denied his request.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received NJP on two occasions, went AWOL on numerous occasions, and was arrested and jailed by civil authorities for auto theft.  

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  The applicant indicated that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  At no time was it indicated that his service would be characterized as general, under honorable conditions, and the applicant was not misled about the type of discharge he was receiving.

3.  At the time the applicant voluntarily submitted his request for discharge in lieu of trial by court-martial, he provided a written statement detailing all his periods of AWOL and his arrest, and indicated that he wanted out of the Army because he could not adjust to military life.  The applicant did not raise the issue of a 

hardship discharge in his statement, the death of his grandparents, or his responsibility to his siblings.  Instead he indicated he had been in jail for
6 months and that he had a girlfriend and a child.

4.  There is no evidence that the applicant applied for a hardship discharge, that his grandparents died or that he was experiencing any hardship because of his responsibilities to his siblings.  There is no evidence that alcohol impaired his ability to serve, that his ability to serve was impaired by his deprived background, or that his mother beat and abused him.  As such, these contentions are not supported by his official record. 

5.  The applicant's contention regarding his youth and immaturity was noted; however, he met entrance qualification standards to include age, and his father consented to his enlistment.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  The applicant indicates that he obtained his GED, has been a good citizen since his discharge, and has worked as a union carpenter for 30 years.  The applicant is commended for his subsequent accomplishments; however, they do not provide a basis upon which to change his type of discharge.

7.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

8.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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)                                         AR20080009197



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ABCMR Record of Proceedings (cont)                                         AR20080009197



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