IN THE CASE OF:	

		BOARD DATE:	  18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012743 


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 a fully honorable discharge.

2.  The applicant states, in effect, that his mother was sick and he went home.  After he came home, he went back.

3.  In support of his request, the applicant provides a copy of a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, and a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

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 he was inducted into the Army of the United States on 23 July 1970.  He completed his basic combat training at Fort Campbell, Kentucky, and his advanced individual training at Fort Lee, Virginia.  On completion of his training, he was awarded the military occupational specialty (MOS), 76X (Subsistence Storage Specialist).

3.  The applicant's records document the highest rank and pay grade he held on active duty was Private, E-1.  The record shows he entered active duty in this rank and pay grade and was discharged in this same rank and pay grade.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]), of the applicant's DA Form 20, Enlisted Qualification Record, shows he was absent without leave for the following periods:  from 6 October 1970 through 11 November 1970 (37 days); from 30 November 1970 through 22 May 1972 (540 days); and from 12 June 1972 through 13 June 1972 (2 days).

5.  The applicant's "discharge packet" is not in the available record and is therefore not available for the Board's review.  However, a completed DD Form 214 shows he was discharged under conditions other than honorable, in the rank and pay grade of Private, E-1, on 1 August 1972, under the provisions of Army Regulation 635-200, for the good of the service.  The applicant's DD Form 214 also shows he was given a SPN (Separation Program Number) of "246" which identifies individuals who were discharged for the good of the service.

6.  On the date of his discharge, the applicant had completed 8 months and 9 days creditable active military service, with 579 days time lost.

7.  A search of the applicant's personnel record was conducted for any evidence (i.e., request for emergency leave, any Red Cross message, a statement from a member of the applicant's chain of command, a counseling record, etc.) that his mother was sick and that he was needed at home to provide medical care for her.  No evidence was found of this nor did the applicant provide any evidence to support his allegation.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time of the applicant's discharge, set forth the basic authority for the separation of enlisted personnel.  Chapter 9, paragraph 9-7, stated that an individual whose conduct had rendered him triable by court-martial under circumstances which could lead to a dishonorable or bad conduct discharge could tender his resignation for the good of the service.  Prior to submission of such a resignation, an individual would be afforded the opportunity to consult with counsel.  The individual would also certify in writing that he understood that he would normally receive a discharge under other than honorable conditions and that he understood the adverse nature of such a discharge and the possible consequences thereof.  The resignation, if accepted, normally would be under conditions other than honorable, and the individual would normally be furnished an undesirable discharge.  However, the discharge authority could direct an honorable or general discharge, if warranted.

10.  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, 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.

11.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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. 

2.  All the documents related to the applicant's discharge are not on file in the applicant's service personnel record; however, a completed DD Form 214 is available for the Board's review and shows the applicant was discharged for the good of the service and was provided an undesirable discharge with his service 

characterized as under other than honorable conditions.  In connection with such a discharge, the applicant was charged with commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and, to voluntarily and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

3.  The available evidence indicates that all requirements of law and regulation were met and it is believed that the rights of the applicant were fully protected throughout the separation process.

4.   The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence indicates that the applicant was aware of that prior to requesting discharge.  It is therefore believed that the reason for discharge and the characterization of service were both proper and equitable.

5.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

6.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge, with his service characterized as under other than honorable conditions, to a general, under honorable conditions, or to a fully honorable discharge.

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)                                         AR20080012743





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ABCMR Record of Proceedings (cont)                                         AR20080012743



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