IN THE CASE OF:	

		BOARD DATE:	    30 September 2008

		DOCKET NUMBER:  AR20080009834 


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 discharge.

2.  The applicant states that he had mental problems at the time.  He also adds that he was not given the opportunity to write his own statement; instead, he was told to go home.  He also states that the statement enclosed with his discharge packet was not his and he was not there to sign it.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Forms 214 (Report of Separation from Active Duty), dated 1 June 1979 and 9 July 1975. 

	b.  DD Forms 4 (Enlistment Contract-Armed Forces of the United States), dated 23 July 1973 and 10 July 1975.

	c.  Orders 145-453, dated 25 May 1979, Discharge Orders.

	d.  DA Form 2-1 (Personnel Qualification Record).

	e.  DA Form 268 (Report of Suspension of Favorable Personnel Action), dated 7 October 1977.

	f.  Orders 145-4, dated 17 August 1977, Reassignment Orders.

	g.  Special Orders Number 111, dated 9 July 1975, Discharge Orders.

	h.  DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 20 June 1977.

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 records show he enlisted in the Regular Army for a period of 3 years on 23 July 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76R (Missile Repair Parts Specialist).  He was honorably discharged on 9 July 1975 for the purpose of immediate reenlistment and reenlisted for a period of 6 years on 10 July 1975.  He also held MOS 76P (Materiel Supply Specialist).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 

3.  The applicant's records show he was awarded the National Defense Service Medal.  His records do not show any significant acts, special recognition, or achievements during his military service.

4.  On 20 June 1977, the applicant accepted nonjudicial punishment under Article 15 of the UCMJ for disobeying a lawful order (twice) from his commanding officer, on or about 18 June 1977 and 19 June 1977, and for failing to go at the time prescribed to his appointed place of duty, on or about 20 June 1977.  His punishment consisted of a forfeiture of $114.62 pay, reduction to private first class (PFC)/E-3, and 9 days of restriction.

5.  On 7 November 1977, the applicant failed to report to his unit and was subsequently reported in an absent without leave (AWOL) status on 8 November 1977.  He was dropped from the Army rolls on 6 December 1977.

6.  On 13 March 1978, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 8 November 1977 until a date to be determined.  

7.  On 26 April 1979, the applicant surrendered to military authorities at Presidio of San Francisco, California, and was subsequently transferred to Fort Ord, California. 

8.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the applicant’s DD Form 214  shows that he was discharged for the good of the service, in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations), with a character of service of under conditions other than honorable.  This form further confirms the applicant completed 4 years, 4 months, and 20 days of creditable active military service, and he had 534 days of lost time, from 8 November 1977 to 25 April 1979. 

9.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

10.  AR 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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  AR 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.

12.  AR 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 contends that his discharge should be upgraded.

2.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he suffered any mental problems or that his extensive lost time was due to mental problems.  

3.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, it appears that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  It is presumed that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  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 evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20080009834



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ABCMR Record of Proceedings (cont)                                         AR20080009834



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