IN THE CASE OF:	  	

		BOARD DATE:	  14 August 2008

		DOCKET NUMBER:  AR20080009348 


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, an upgrade of his undesirable discharge (UD).   

2.  The applicant states, in effect, his discharge was too harsh and was the result of conditions beyond his control.  He also claims he was unable to receive proper counseling.   

3.  The applicant provides no additional documentary evidence 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's record shows that he enlisted in the Regular Army and entered active duty on 13 February 1975, and was trained in and awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that he was promoted to private/E-2 on 13 June 1975, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's Personnel Qualification Record shows that he departed absent without leave (AWOL) from his unit at Fort Campbell, Kentucky, on 28 October 1975.  He remained away for 19 days until returning to military control on 15 November 1975.  It also shows that he again departed AWOL on 18 November 1975 and remained away for 69 days until returning to military control on 25 January 1976.

5.  On 26 January 1976, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 28 October through on or about 16 November 1975, and from on or about 18 November 1975 through on or about 26 January 1976.

6.  On 26 January 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances that could lead to a bad conduct or dishonorable discharge, of the effects of a discharge request for the good of the service, and of the rights available to him.  Subsequent to this counseling, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his discharge request, the applicant acknowledged that he could receive an UD and that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both State and Federal law.  He further indicated that he understood he could encounter substantial prejudice in civilian life by reason of an UD.  The applicant elected not to submit a statement in his own behalf.

8.  On 23 February 1976, the separation authority approved the applicant's request for discharge and directed he receive an UD.  On 25 February 1976, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant upon his discharge shows he completed a total of 9 months and 17 days of creditable active military service and that he accrued 88 days of time lost due to AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

11.  The same regulation states that an under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD for members whose service was characterized as UOTHC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge was too harsh and was the result of conditions beyond his control were carefully considered.  However, there is insufficient evidence to support these claims.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record further shows that the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in his receiving a punitive discharge, only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving an UD.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and the UD he received was normal and appropriate under the regulatory guidance in effect at the time.  It is clear that his undistinguished record of service did not support the issue of a GD or HD by the separation authority at the time of his discharge, and it is equally clear it does not support an upgrade now.
4.  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.

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)                                         AR20080009348



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009348



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1