IN THE CASE OF:	  

		BOARD DATE:	
		DOCKET NUMBER:  AR20080010639 


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), characterized as under other than honorable conditions (UOTHC), be upgraded to a general under honorable conditions or honorable discharge.

2.  The applicant states that he received a hardship discharge for marital problems.  He was told that the discharge he received was the only type he could get during a time of war.  He was to request an upgrade of his discharge after 6 months.  He was unable to take care of it until now due to health and mental disabilities.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

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 he enlisted in the Regular Army on 24 June 1968. He was trained as a clerk in military occupational specialty 70A.

3.  On 16 September 1968, the applicant was punished under Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 2 September 1968 to 3 September 1968.  His punishment consisted of an oral reprimand, a forfeiture of pay, and 14 days of restriction and extra duty.

4.  The applicant was convicted by a special court-martial on 25 February 1969 of being AWOL from on or about 11 December 1968 to on or about 28 January 1969.  His sentence consisted of a reduction to pay grade E-1, a forfeiture of pay, and confinement at hard labor for 3 months (suspended).

5.  The applicant was convicted by a special court-martial on 18 June 1969 of being AWOL from on or about 18 March 1969 until on or about 21 May 1969.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

6.  Item 44 of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was confined from 24 May 1969 to 4 July 1969 (42 days), was in a dropped from the rolls (DFR)/escapee status from 5 July 1969 to 22 September 1969 (79 days), was confined from 23 September 1969 to 16 October 1969 (24 days), was in a DFR/escapee status from 17 October 1969 to 22 April 1970 (188 days), was confined from 23 April 1970 to 27 May 1970 (35 days), was AWOL from 28 May 1970 to 29 May 1970 (2 days), and was confined from 30 May 1970 to 28 September 1970 (122 days).

7.  On 1 September 1970, while confined, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs if an undesirable discharge were issued.  He waived his rights and elected to submit a statement in his own behalf; however, his statement is unavailable for review.

8.  On 18 September 1970, the separation authority approved the applicant's request for discharge and recommended that he be furnished an undesirable discharge.  He was discharged 29 September 1970.  He had a total of 7 months of creditable service and 605 days of time lost due to AWOL and confinement.
9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.

11.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  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 evidence of record shows that the applicant had a pattern of misconduct. He received one Article 15, two special courts-martial and two Article 15s, and was AWOL on several occasions.

2.  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 appears to be administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The approval authority approved his request and recommended that he be furnished an undesirable discharge characterized as UOTHC.

3.  The applicant's contentions were considered; however, there is no evidence in the applicant's records, and the applicant has provided none, to show that he received a hardship discharge for marital problems or that he was informed that the discharge he received was the only type that he could get during a time of war.

4.  The evidence of record clearly shows that it has been approximately 38 years or more since he received his undesirable discharge.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted or applied for an upgrade of his discharge to the ADRB within the 
15-year statute of limitations.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges after 6 months.

5.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise 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)                                         AR20080010639



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ABCMR Record of Proceedings (cont)                                         AR20080010639



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