IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080011713 


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 honorable.

2.  The applicant states that he was just too young and had substance abuse problems.  He never got any help with that.  It has been many, many years since he was in the Army, and he really wants his discharge changed to honorable.

3.  The applicant provides no additional evidence.

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 born on 9 August 1949.  He was inducted into the Army of the United States on 20 February 1968.  He was honorably discharged on 27 February 1968 and enlisted in the Regular Army on 28 February 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  The applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, on two occasions (for being derelict in the performance of his duties by failing to secure his wall locker and for failing to go to his appointed place of duty; and for failing to go to his appointed place of duty).  

4.  The applicant was convicted by one summary and two special courts-martial, all for being absent without leave (AWOL).  

5.  The court-martial charge sheet and the applicant’s discharge packet are not available.

6.  On 21 November 1969, the applicant underwent a mental status evaluation.  The evaluation noted that at the time of the alleged offenses the applicant was so far free from mental defects, disease, or derangements as to be able concerning the particular acts charged to distinguish right from wrong and to adhere to the right.  The evaluation also noted that he was being charged with violation of Articles 86 (AWOL), 121 (larceny and wrongful appropriation), and 134 (the general article).

7.  On 20 January 1970, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 1 year, 6 months, and        16 days of creditable active service and had 137 days of lost time (AWOL and confinement).

8.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  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.
9.  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.  

10.  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.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  It is noted that the applicant was 19-years old when he was inducted into the Army, and his contention that he had substance abuse problems has been considered.  However, there is no evidence to show that his substance abuse problems were caused by anything other than his own misconduct (i.e., that the substances he was abusing were other than illegal drugs or legal drugs illegally obtained). 

3.  Considering the quality of the applicant’s service, it appears that his undesirable discharge, characterized as under other than honorable conditions was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ___XX_____  __XX______  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.



      _______XXXX_______________
               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)                                         AR20080011713



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ABCMR Record of Proceedings (cont)                                         AR20080011713



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