IN THE CASE OF:	  

		BOARD DATE:	       21 August 2008

		DOCKET NUMBER:  AR20080009566 


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 honorable.

2.  The applicant states that he made a mistake but he was a good and honorable Soldier.  His mistake was due to circumstances beyond his control.  When he entered the Army in 1972, he had good intentions.  His uncle, who helped raise him, died in June 1973.  He could not go home.  Then in November 1973 his uncle’s father, the applicant’s grandfather, died.  He went home on      30 days leave.  It was a sad time for his mother.  She was struggling financially and physically.

3.  The applicant states that, despite all that, he met his first wife, fell in love, and got married two weeks after meeting her.  They only lived together for a few months.  After he was discharged, she would not have anything to do with him.  He was messed up and thought he was in love, but she only wanted someone in the Service.  They had a little girl, and he got custody of their child.  He needed to help his mother and be there for his mother.  He made a terrible decision.  He really would like an honorable discharge so when he dies he will have an American flag on his coffin.

4.  The applicant states that he made E-2 out of basic training and E-3 out of advanced individual training (AIT).  While in AIT, he was the colonel’s orderly a couple of times for being the sharpest Soldier in the company.  He made E-4 
after a few months in Germany.  He was up for E-5, which meant a great deal to him.  He really did like the Army.  He just made a bad decision to accept that discharge.  

5.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); his DD Form 214 (Report of Separation from Active Duty); and nine character witness statements.

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 was born on 5 January 1955.  He enlisted in the Regular Army on 29 April 1972.  He completed basic training and was advanced to Private, E-2, on 5 July 1972.  He completed AIT, was awarded military occupational specialty 62J (General Construction Machine Operator), and was advanced to Private First Class, E-3, on 25 August 1972.  He was assigned to Germany on or about        30 November 1972.  

3.  On 5 January 1973, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for resisting being lawfully apprehended by a military policeman and for assaulting a military policeman.

4.  The applicant was promoted to Specialist, E-4, on 1 October 1973.

5.  On 22 February 1974, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about 20 December 1973 to on or about 9 February 1974.

6.  On 26 February 1974, the applicant completed a separation physical and was found qualified for separation.

7.  On 26 February 1974, the applicant completed a mental status evaluation.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

8.  On 27 February 1974, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He was advised of the effects of an undesirable discharge and that he might be deprived of many or all Army and Department of Veterans Affairs (VA) benefits.  He submitted a statement in his own behalf.

9.  In his statement, the applicant stated that he wanted out of the Army because he did not like it.  If he did not get out he would keep going AWOL because he loved his wife and he was going to be with her.  He got married on 28 December 1973.

10.  On 22 March 1974, the appropriate authority approved the applicant’s request and directed he be given an Undesirable Discharge Certificate.

11.  On 9 April 1974, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 1 year, 9 months, and 20 days of creditable active service and had 51 days of lost time.

12.  The applicant provided nine character witness statements.  Three of the witnesses stated that they have known the applicant for 20, 25, and 30 years, respectively.  The others have known the applicant for lesser periods of time.  All stated in various ways that the applicant was a respected businessman, a role model, a mentor, and was very dependable and trustworthy.

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 trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  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.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  It is acknowledged that the applicant was advanced immediately out of basic training and again out of AIT.  It is also noted that he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, in January 1973 before being advanced again, in October 1973.

3.  In addition, the applicant’s statements now do not match what he stated at the time.  He currently states that he needed to help his mother and be there for his mother.  However, at the time of his voluntary request for discharge, he stated that he wanted out of the Army because he did not like it and if he did not get out he would keep going AWOL because he loved his wife and he was going to be with her.  

4.  The applicant’s good post-service conduct is commendable; however, the character witness statements he provided are insufficient evidence to warrant upgrading his discharge.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ____xx__  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.



      _________xxxx_________
               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)                                         AR20080009566



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ABCMR Record of Proceedings (cont)                                         AR20080009566



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