IN THE CASE OF:
BOARD DATE: 06 NOVEMBER 2008
DOCKET NUMBER: AR20080012152
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 fully honorable.
2. The applicant states that since his discharge he has remained gainfully employed and a church member and has not used any drugs.
3. The applicant provides his separation document (DD Form 214).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Army National Guard (ARNG) on 6 May 1971.
3. On 11 July 1972, the applicant was discharged from the ARNG due to being ordered to involuntary active duty as an unsatisfactory participant.
4. On 31 January 1973, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 27 December 1972 to 2 January 1973; for using wrongfully reproachful language towards his first sergeant by saying Fuck you, I am not going to Germany. Put me in the stockade; for being disrespectful in deportment towards his first sergeant by continually walking away while he was talking to him and by answering him in a loud and disrespectful manner; for disobeying a lawful command; and for being AWOL from 28 to 31 January 1973.
5. On 15 February 1973, court-martial charges were preferred against the applicant for breaking arrest and for being AWOL from 31 January to 5 February 1973.
6. On 22 February 1973 the applicant requested discharge for the good of the service in lieu of trial by court-martial. In that request he acknowledged that he could be issued an Undesirable Discharge Certificate and was informed of the consequences of being given an undesirable discharge.
7. That request was approved by the appropriate authority. As a result, on 30 March 1973 the applicant was issued an Undesirable Discharge Certificate under the provisions of Army Regulation 635-200, chapter 10.
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 applicants repeated acts of serious misconduct certainly warranted him being issued an Undesirable Discharge Certificate.
2. While it is commendable that the applicant is now gainfully employed, a church member, and drug free, these post-service activities and behaviors are insufficient to warrant upgrading a properly issued discharge.
3. As such, there is no basis for granting the applicants request.
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.
_______ _ 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) AR20080012152
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ABCMR Record of Proceedings (cont) AR20080012152
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