IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012513 


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, an upgrade of his undesirable discharge (UD).

2.  The applicant states, in effect, that he and his sergeant (SGT) did not get along because they shared a mutual admiration for the same girl.  He claims that the SGT assigned him extra duties to keep him away from the girl and indicates that he was always considered wrong and the SGT right.  As a result he states he began to disobey orders, drink, and to go absent without leave (AWOL).

3.  The applicant provides a copy of his separation document 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's military personnel records show he enlisted in the Regular Army and entered active duty on 30 September 1974.  He completed basic combat training at Fort Knox, Kentucky, and advanced individual training at
Fort Sill, Oklahoma.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  His Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments & Reductions), that he was advanced to the rank of private/E-2 (PV2) on
30 January 1975, and that this was the highest rank he held while serving on active duty.  It also shows that he was reduced to the rank of private/E-1 (PV1) on 11 April 1975.

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  The record does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five dates for the offenses indicated:  7 November 1974, for failing to go at the time prescribed to his appointed place of duty; 21 November 1974, for breaking restriction; 18 January 1975,  for failing to go at the time prescribed to his appointed place of duty; 11 April 1975, for failing to go at the time prescribed to his appointed place of duty and for being incapacitated for the performance of duty through prior intoxication of liquor; and 20 May 1975, for being AWOL from 22 -25 April 1975 and from 1 - 6 May 1975.

4.  A Charge Sheet (DD Forms 458) was prepared preferring court-martial charges against the applicant for violating the following Articles of the UCMJ by committing the offenses indicated:  Article 121, by stealing a hat from the Post Exchange valued at $9.95; Article 86, by being AWOL from on or about 30 June through on or about 1 July 1975; and Article 91, for being disrespectful in language to his superior noncommissioned officer.

5.  On 15 July 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.  In his request for discharge, he acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also included a statement indicating that his personal problems along with some military problems hardened him to the point he began to regress in the military.

6.  On 6 August 1975, the separation authority approved the applicant’s request for discharge and directed that he receive an UD discharge under the provisions of chapter 10, Army Regulation 635-200.  On 11 August 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 10 months and 2 days of creditable active military service and that he accrued 8 days of time lost due to AWOL.  

7.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 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. 

9.  The same regulation states that an under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because his problems were the result of a personality conflict with his SGT has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The applicant, after consulting with counsel and being advised of his rights and the effects of an UD, voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.


3.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UD the applicant received was normal and appropriate under the regulatory guidance.  Given his extensive disciplinary history, his record of service clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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 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.



      _______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)                                         AR20080012513



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ABCMR Record of Proceedings (cont)                                         AR20080012513


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