IN THE CASE OF:	 

		BOARD DATE:	       20 November 2008

		DOCKET NUMBER:  AR20080012738


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 (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that at the time of his discharge, he had parents who were both terminally ill, a sister that was mentally challenged, and an unfaithful wife.  He claims that based on these issues, he felt he had no choice but to put the needs of his family first at the time.

3.  The applicant provides a self-authored statement, Congressional Inquiry, and Certification of Military Service 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 record shows that he was inducted into the Army of the United States and entered active duty on 25 March 1969.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and private/E-1 is the highest rank he attained while serving on active duty.

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  His Enlisted Qualification Record (DA Form 20) shows in item 44 (Time Lost) that he accrued 319 days of time lost due to being absent without leave (AWOL) from 14 July 1969 to 7 June 1970.

4.  After a court-martial charge was preferred against the applicant, on 9 June 1970 he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a UD, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge from the Army for the good of the service in lieu of trial by court martial under the provisions of chapter 10, Army Regulation 635-200.  The applicant declined representation by counsel and elected not to make a statement on his own behalf.

5.  In his request for discharge the applicant acknowledged he understood that if his discharge request was approved, 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 further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UD.

6.  On 20 July 1970, the separation authority approved the applicant's request for discharge and directed the applicant be discharged under the provisions of chapter 10, Army Regulation 635-200, and that he receive a UD.  On 31 July 1970, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his separation shows he completed a total of 7 months and 7 days of creditable active military service and that he accrued 319 days of time lost due to AWOL.

7.  On 14 September 1977 and 8 December 1980, the Army Discharge Review Board, after carefully considering the applicant's overall record of service and concluding his discharge was proper and equitable, twice voted to deny the applicant’s petitions 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.  The separation authority may issue a general under honorable conditions discharge (GD) or HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's discharge, the regulation provided for the issuance of a UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his UD should be upgraded because he felt he had no other choice than to place the needs of his family first during his military service was carefully considered.  However, this factor is not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The evidence of record confirms the applicant was AWOL for 319 days, an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and he voluntarily requested administrative discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  As a result, his record did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade at this late date.  Therefore, given the applicant’s discharge accurately reflects his overall record of undistinguished service, there is an insufficient evidentiary basis to support granting the requested relief in this case.

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 requirement.


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)                                         AR20080012738



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ABCMR Record of Proceedings (cont)                                         AR20080012738



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