IN THE CASE OF:	  

		BOARD DATE:	        13 August 2008

		DOCKET NUMBER:  AR20080009657 


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 (UD) be upgraded to a general discharge (GD). 

2.  The applicant states, in effect, that if two sergeants from two different commands hadn't hassled him, he would not have gone AWOL (absent without leave) and he would have retired from the Army.  He sought help with the alleged harassment from his chain of command and the chaplain as well as attempted to change his military occupational specialty (MOS) and to change units without success.  After he was dropped from his unit's rolls, he turned himself in and was discharged.  

3.  The applicant provides no supporting documentation.

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, with parental consent, entered active duty on 18 March 1975, completed training, and was awarded the MOS 11C (Infantry Indirect Fire Crewman).

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions:

	a.  18 November 1975, for being AWOL from 3 November 1975 through 14 November 1975; and

	b.  13 January 1976, for disobeying a direct order from a commissioned officer.

4.  The applicant was AWOL from 23 March 1976 through 15 May 1976, that ended by his being apprehended by civilian authorities.

5.  On 21 May 1976 court-martial charges were preferred for this period of AWOL.

6.  On 26 May 1976, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, that he could receive a discharge under conditions other than honorable and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an UD. 

7.  The applicant was placed in an excess leave status on 28 May 1976 pending review of his request for discharge.

8.  The discharge authority approved the request for discharge and directed the applicant be reduced to the lowest enlisted grade and discharged with an UD.

9.  The applicant was discharged with an UD on 24 June 1976.  He had 1 year, 1 month, and 13 days of creditable service with 59 days of lost time and 89 days of excess leave.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  In pertinent part, it states at:

	a.  Paragraph 3-7b, as then in effect, stated that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

	b.  Paragraph 3-7c states that an UD was issued when there was one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an UD for discharges issued under the provisions of chapter 10 of this regulation; and

	c.  Chapter 10, as then in effect, provided that a member who had 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 conditions other than honorable was normally considered appropriate and the regulation provided for the issuance of an undesirable discharge.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

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, in lieu of 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.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  There is no documentation in the record and the applicant has provided no documentation to support his allegations that he suffered any type of harassment or that he requested and was refused a unit transfer or a change of MOS.  There is no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.
10.  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)                                         AR20080009657



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ABCMR Record of Proceedings (cont)                                         AR20080009657



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