IN THE CASE OF:	  

		BOARD DATE:	  	  16 October 2008

		DOCKET NUMBER:  AR20080011430 


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 dishonorable discharge (in effect, his under other than honorable conditions discharge) be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that when he returned from Germany, he met his childhood sweetheart and he acted like a foolish kid.  He left the post and he has paid the price since.  He adds that he was strung out on heroin for 30 years and has been in and out of prison.  But now he is a Soldier for Jesus and is reporting for duty.  He adds that God is having him get his house in order and it is in God’s hand now.  By God’s grace he is 57 years old, “but feels like Caleb 25 years old.”  If you are a Christian you know what he is talking about.      

3.  The applicant provides a self-authored letter in support of his application.

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 inducted into the Army of the United States on 16 October 1969, at the time; he was 19 years of age.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest grade he attained was pay grade E-4. 

3.  On 24 June 1971, the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 28 February 1971 to on or about 
22 June 1971.  His imposed punishment was a forfeiture of $70.00 pay per month for 2 months and a reduction to pay grade E-2.

4.  On 9 August 1971, the applicant accepted NJP for being AWOL from 21 July 1971 to 4 August 1971.  His imposed punishment was a forfeiture of 7 days pay ($35.00).  

5.  On 10 August 1971, the applicant was reported AWOL and he was returned to military control on 14 September 1971.

6.  On 15 September 1971, court-martial charges were preferred against the applicant for being AWOL from 10 August 1971 to 13 September 1971.  

7.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under conditions other than honorable and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, the request was made of his own free will and he was not coerced into making the request.  The applicant understood that by submitting the request for discharge, he acknowledged that he was guilty of the charge against him.  He also acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.  The applicant submitted a statement in his own behalf.  He stated in effect, that he was the oldest in his family and needed to help them out as much as he could.  They are farm workers and his parents brought him up not the Army.  He states that if he does not get a discharge he will go AWOL again.  He adds that he now take drugs now and then, to ease his problems, like the Army.  He is better off on the outside.    
8.  On 21 September 1971, a Report of Medical Examination found the applicant fit for retention or separation from the service.  

9.  On 24 September 1971, the applicant’s unit commander recommended approval of the applicant’s request for a discharge under the provision of Army Regulation 635-200, Chapter 10 with an Undesirable Discharge Certificate.  

10.  On 30 September 1971, the separation authority approved the applicant’s request, directed that the applicant be reduced to the lowest enlisted grade, that he be discharged under the provisions of Army Regulation 635-200, Chapter 
10, for the good of service and that he be furnished an Undesirable Discharge Certificate.  On 1 October 1971, the applicant was discharged accordingly.  The discharge document (DD Form 214) he was issued confirms he completed a total of 1 year, 4 months and 17 days of creditable active military service during this enlistment period and he had 179 days of lost time.  

11.  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.  

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and the applicant’s personal problems were unfortunate.  However, there is no evidence in his record nor did the applicant provide any evidence to show that his discharge should be upgraded to an honorable discharge.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who served and successfully completed their military service commitment.  Therefore, there is insufficient evidence to support the applicant’s contentions.

2.  However, the evidence of record confirms that the applicant went AWOL for 179 days, and he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  The discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service clearly did not support the requested relief.  

3.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

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

5.  In order to justify correction of a military record the evidence must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The evidence submitted did not 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)                                         AR20080011430



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ABCMR Record of Proceedings (cont)                                         AR20080011430



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