IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080012947 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states that at the time of his discharge he was told that his discharge would/could be upgraded after 5 years.  He states that all of the issues that he has ever had in the service had to do with a captain and it was all about his wife and her health and the illegal things that he did in retaliation for his complaint to a senator.  He states that he was a good Soldier until “this crap” happened.  He states that he accepted a general discharge in lieu of trial by court-martial which would have kept him in the Army fighting this injustice when at the time all he wanted was to be treated fairly and to be done with it.  He states that the lack of an honorable discharge is now affecting his life and he requests that his discharge be upgraded and that he be furnished an updated Report of Separation from Active Duty (DD Form 214).

3.  The applicant provides no additional documentation 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.  On 12 February 1973, the applicant enlisted in the Regular Army in Seattle, Washington, for 3 years, in the pay grade of E-1.  He went on to successfully complete his training as a plumber.

3.  He was advanced to the pay grade of E-2 on 12 June 1973; to the pay grade of E-3 on 28 November 1973; and to the pay grade of E-4 on 1 May 1974.

4.  The applicant’s records show that he went absent without leave (AWOL) on 19 December 1974 and that he remained absent until he surrendered to military authorities on 12 January 1975.

5.  On 30 January 1975, the applicant was notified that charges were pending against him for being AWOL from 19 December 1974 until 13 January 1975 and for missing movement on 19 December 1974.  He acknowledged receipt of the notification on 21 February 1975 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 625-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged that he understood that if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  

6.  Along with his request for discharge, the applicant submitted a statement in his own behalf in which he requested to be considered for a general discharge.  He stated that, in his opinion, the Army was responsible for his family and Army problems.  He stated that guard duty, field duty, conditions around Army posts, and overseas assignment for unwilling married personnel all had contributed greatly to the failure of his marriage, which in turn caused his severe attitude change towards the Army.  He stated that he always kept everything together; however, when he came down on levy for Korea, his life came apart.  He stated that he was told by his wife that if he left before his daughter’s second birthday and before the holidays were over, he would not be seeing his daughter when he returned from overseas.  He stated that he could not force himself to leave as he could not let this happen.  He stated that with family problems and a big hassle with the Army, he took on the Army.

7.  In the statement that the applicant submitted along with this request for discharge, he stated that he knew that missing movement to Korea was wrong; however, he did not have any better ideas at that time as his family had been in his life before the Army.  He stated that his family was his first priority; that he blamed the Army and wanted out; that he no longer felt any pride in wearing the uniform; that he had little respect for anyone in uniform; and that he felt that he was of no use to the Army.  The applicant stated that he just wanted out of the Army to find a place in society where he could earn a living and do someone some good.  The applicant states that for the reasons that he cited, he had hopes of a discharge other than undesirable; that he wanted to do well outside of the Army; that he did not want people to think that he was crazy or a criminal for what he had done; and that he anticipated having problems finding work because of family problems that were caused by the Army.  The applicant concluded by stating that he only wanted a chance to make it in a civilian community without an undesirable discharge always in the shadows.

8.  The appropriate authority approved the request for discharge on 28 March 1975 and he directed the issuance of a General Discharge Certificate.  The applicant was at the transfer point for separation processing on 15 April 1975, when he acknowledged that he understood that he was being issued a general discharge and that the Army Discharge Review Board was the administrative agency to review, upon its own motion or upon application by the individual concerned, the type and nature of the discharge or dismissal of former members of the Armed Forces.

9.  On 15 April 1975, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 1 month, and 10 days of total active service and he had approximately 24 days of lost time due to AWOL.  He was furnished a General Discharge Certificate.

10.  The available records do not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  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 an undesirable discharge was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, there is no evidence in the available record, nor has he submitted any evidence that shows that he was being transferred to Korea as a result of retaliation against him for making a complaint against the Army through a senator, or that he was told his discharge would be upgraded to honorable after 5 years.

4.  While the applicant’s records do show that he was having family problems while he was in the Army, his records do not show that he made any attempt to seek assistance for his problems.  His records show that he went AWOL for approximately 24 days and when he returned, he requested to be discharged for the good of the service in lieu of trial by court-martial.  He also requested that he be furnished a general discharge, which was taken into consideration and approved as evident by the type of discharge that he received when an undesirable discharge was normally considered appropriate.

5.  Considering the applicant’s AWOL offense and missing movement for overseas assigment, the type of discharge that he was furnished appropriately reflects his overall record of service as his service was not completely honorable.

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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)                                         AR20080012947



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ABCMR Record of Proceedings (cont)                                         AR20080012947



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