IN THE CASE OF:	

		BOARD DATE:	17 September 2008  

		DOCKET NUMBER:  AR20080009766 


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.

2.  The applicant states that he was not provided due process of law because he was not afforded proper legal representation at the time of his discharge.  

3.  The applicant provides an application for the review of discharge from the Armed Forces of the United States, a letter of clearance from a local police department, a letter from his ministry, a letter from a veteran center, and a letter from a community meal organization.

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 was inducted and entered active duty on 23 August 1967.

3.  The applicant completed his initial entry training and was awarded the military occupational specialty of light weapons infantryman.

4.  The applicant was confined by civilian authorities from 27 January to 8 May 1968 for unlawful use of an automobile by driving without a license and registration.

5.  On 8 August 1969, the applicant was convicted by a special court-martial for being absent without leave (AWOL) from 17 September 1968 to 22 July 1969.  His sentence included confinement for 6 months.

6.  The applicant served his sentence to confinement from 22 July to 15 October 1969.

7.  On 31 October 1969, the applicant again departed AWOL.

8.  The applicant was apprehended and returned to military control on 20 June 1974.

9.  Court-martial charges were preferred against the applicant for being AWOL from 31 October 1969 to 20 June 1974.

10.  In an undated letter, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  In that request he acknowledged that he was guilty of the charge against him, that he had been afforded the opportunity to consult with appointed counsel for consultation, that he had consulted with counsel for consultation who fully advised him of the nature of his rights under the Uniform Code of Military Justice, that he could be given an undesirable discharge which would result in him being “deprived of many or all Army benefits, that I may be ineligible for many or all benefits administered by the Veterans Administration, and that I may be deprived of my rights and benefits as a veteran under both Federal and State Law.”



11.  That request was approved by the appropriate authority.  Accordingly, on 
2 August 1974, the applicant was issued an Undesirable Discharge Certificate.  He had 11 months and 9 days of creditable service and had 2,189 days time lost prior to the expiration of his term of service (ETS), and 1,745 days of lost time after his ETS date.

12.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted documents to show that he is now a law-abiding citizen who is a credit to his community.

2.  While the applicant’s community involvement is certainly commendable, it is insufficient to warrant upgrading a discharge which the applicant himself requested.  

3.  The applicant was AWOL for 3,934 days, he was incarcerated by civilian authorities for 103 days, and he was confined by military authorities for 86 days.  Such service record is certainly not under honorable conditions (a general discharge).

4.  Contrary to the applicant’s contention, he was provided legal counsel and consulted with legal counsel prior to making his request for discharge in lieu of trial by court-martial.  As such, this contention is not accepted.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.









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)                                         AR20080009766



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ABCMR Record of Proceedings (cont)                                         AR20080009766



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