IN THE CASE OF:	  

		BOARD DATE:	        18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011815 


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, that his undesirable discharge be upgraded to an honorable or a general discharge.

2.  The applicant states that he had custody of his two children and that he was trying to get a divorce.  He states that if he had not been trying to get a divorce, he would have been a good Soldier.  He stated that during that period of time, he was going through a trying time.  He states that people who whet to Canada were able to get discharges and that he believes that he is entitled to a second chance.

3.  The applicant provides in support of his application, a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 23 September 2007 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.  On 20 October 1972, the applicant was inducted into the Army of the United States in Nashville, Tennessee.  

3.  The applicant was still in basic combat training when nonjudicial punishment (NJP) was imposed against him on 12 December 1972, for being absent without leave (AWOL) from 1 November 1972 until 3 November 1972 and from
8 November 1972 until 30 November 1972.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 11 September 1973, the applicant was notified that charges were pending against him for being AWOL from 21 December 1972 until 29 December 1972, from 4 January 1973 until 21 February 1973, from 6 May 1973 until 31 May 1973, and from 31 May 1973 until 26 August 1973.  He acknowledged receipt of the notification on 30 August 1973 and, after consulting with counsel, he submitted a request for discharge, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

5.  Along with his request for discharge, the applicant submitted a statement in his own behalf in which he stated that he had read and understood the effects of a chapter 10 discharge and that he wanted out of the Army because he was drafted and because he hated the Army.  He stated that he was divorced and that he had two children.  He stated that his parents were caring for his children while he was away.  He stated his father was disabled and that his parents could not afford to care for his children.  He stated that his children needed him more than the Army needed him as they had no one else to care for them.  He concluded by stating that he wanted to get out of the Army to be with his children, that he could not adjust to military life, and that he believed that getting out of the Army was best for him and the Army.

6.  The appropriate authority approved the request for discharge on 24 September 1973 and directed the issuance of an undesirable discharge.  Accordingly, on 1 October 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 3 months and 9 days of total active service and he had approximately 246 days of lost time.  He was furnished an undesirable discharge as directed.


7.  On 24 March 1975 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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.  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.

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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant the relief requested.  His records show that he completed only 3 months and 9 days of total active service and that he had approximately 246 days of lost time as a result of his acts of indiscipline.  Considering the nature of offenses, it appears that his undesirable discharge properly 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 has failed to submit evidence that would satisfy this requirement.

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

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)                                         AR20080011815



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ABCMR Record of Proceedings (cont)                                         AR20080011815



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