IN THE CASE OF:	  

		BOARD DATE:	  	  15 October 16, 2008

		DOCKET NUMBER:  AR20080011874 


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 discharge be upgraded from an undesirable discharge to an honorable discharge. 

2.  The applicant states, in effect, he was sent home by order of his commanding officer for his own protection due to threats of Mr. H_____ H_______.

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) and copies of his prescription medication in support of this 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's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he enlisted in the Regular Army on 26 September 1972.  He completed the required training and was awarded military occupational specialty (MOS) 94B (Cook).  The highest rank he attained while serving on active duty was Private First Class (PFC), pay grade E-3.

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  A DA Form 268 (Report for Suspension of Favorable Actions), shows that the applicant’s records were flagged on 12 February 1974, due to his confinement at the Confinement Facility, Fort Sill, Oklahoma, pending trial for being absent without official leave (AWOL) from 18 August 1973 to 6 February 1974. 

5.  The applicant submitted a copy of his VA Form 21-4138 in which he stated that he did not go AWOL; that his commanding officer sent him home for the protection of his life because he reported Mr. H_______ to the CID (Criminal Investigation Command) or the military police.  He also stated that somehow they (his command) forgot about him and his protection once the trial was over.

6.  The applicant submitted copies of a listing by the Wishard Memorial Hospital, Indianapolis, Indiana from 17 November 2007 to 6 June 2008 showing his prescribed medications.

7.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214 authenticated by the applicant that contains the authority and reason for the applicant’s active duty discharge on 18 March 1974, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, with an undesirable discharge, characterized as under other than honorable conditions by reason of the good of the service in lieu of court-martial.  The DD Form 214 he was issued confirms he completed a total of 9 months and 13 days of creditable active military service and had 253 days of lost time due to being absent without leave (AWOL).

8.  Army Regulation 635-200 (Personnel Separations) 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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  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.

10.  Army Regulation 635-200 (Personnel Separations) 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(s) 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 trail by court-martial.  An undesirable discharge is 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 (emphasis added), 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 applicant’s contentions were carefully considered and found to be without merit.

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted
DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge and it is authenticated by the his signature in Item 32 (Signature of Person Being Transferred or Discharged).

3.  The evidence of record shows that the applicant was discharged with an undesirable discharge and had 253 days of lost time due to AWOL.  Therefore, his service does not warrant an upgrade of his undesirable discharge to either a general or an honorable discharge. 

4.  There is no evidence in the applicant’s record and the applicant did not provide any evidence to show that his command told him to go home for his own protection or that his life was ever threatened.  There is also no evidence that the applicant’s medication were prescribed or filled prior to his discharge from the Army.

5.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

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)                                         AR20080011874



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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