IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080011491 


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 discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant states, in effect, that his records contain 32 letters of commendation and recommendation.  He also states that he has worked and taken care of his family since his discharge. 

3.  The applicant provides a copy of his DD Form 214, 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 enlisted in Knoxville, Tennessee on 19 May 1975 for a period of 3 years, training as a short range air defense artillery crewman and assignment to Europe.  He was single at the time of his enlistment.

3.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training at Fort Bliss, Texas before being transferred to Kaiserslautern, Germany on 8 October 1975.  He was advanced to the pay grade of E-3 on 9 January 1976. 

4.  On 19 May 1976, nonjudicial punishment was imposed against the applicant for being disrespectful in language towards a superior noncommissioned officer (NCO).  His punishment consisted of a reduction to the pay grade of E-2 (suspended for 30 days), a forfeiture of pay, and extra duty.  He did not appeal the punishment.   

5.  On 10 August 1976, the applicant departed Germany and was transferred to Fort Bragg, North Carolina for assignment as a Vulcan gunner in a field artillery battery.  He was advanced to the pay grade of E-4 on 1 November 1976.  

6.  On 21 June 1977, the applicant went absent without leave (AWOL) and remained absent in desertion until he was apprehended by civil authorities on 4 August 1977 and was returned to military control at Fort Bragg.  However, on the same day, he again went AWOL and remained absent in desertion until he was apprehended by civil authorities in Johnson City, Tennessee on 2 November 1977 and was returned to military control at Fort Knox, where charges were preferred against him for the AWOL charges.  

7.  On 14 November 1977, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an under other than honorable conditions discharge, and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf whereas he stated that his attitude towards the Army changed when he was brought back to the United States and was placed to work in another military occupational specialty.  He 

went on to state that his attitude would worsen if his discharge was not approved and contended that the Army would be better off without him because all he wanted to do was make a fresh start in a new way of life, which was what he was doing when he was picked up and returned to Army control.

8.  The appropriate authority (a major general) approved his request on 29 November 1977 and directed that he be discharged under other than honorable conditions. 

9.  Accordingly, he was discharged under other than honorable conditions on 19 December 1977, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 2 months, and 21 days of total active service and had 133 days of lost time due to AWOL.  He indicated that he was still single at the time.    

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  A review of the applicant’s records show that he received a Letter of Appreciation on 17 May 1976 and a Letter of Commendation on 20 May 1976. 

12.  On 12 October 1987, the applicant authorized the release of information from his military records to probation and parole officials of the Tennessee Department of Corrections. 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  An under other than honorable conditions discharge was normally considered appropriate.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him. 
  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080011491



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ABCMR Record of Proceedings (cont)                                         AR20080011491



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