IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013109 


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 an honorable or general discharge.

2.  The applicant essentially states that he was on a 30-day leave when his wife got sick, so he stayed beyond his authorized leave.  He also states, in effect, that he got to the Army base on the 31st day, and that he was told that he was looking at a court-martial and probably some jail time, so he requested to be discharged in lieu of a court-martial.  He further states that he was in the Army at Fort Riley, Kansas, from 1972 to 1975, but that he is in prison right now.  He continued by essentially stating that he does not have the document showing what kind of discharge he received, but that his discharge was for being absent without leave (AWOL) for one day over his authorized leave.  He also states that he heard that he could get his discharge upgraded to an honorable discharge.

3.  The applicant provides an undated self-authored letter in support of this 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 records show that he enlisted in the Regular Army on 31 July 1973.  He completed basic training at Fort Dix, New Jersey; however, prior to completing basic training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his superior noncommissioned officer.  His punishment consisted of forfeiture of $25.00 pay per month for 1 month, restriction for 7 days, and extra duty for 7 days.  He then departed for Aberdeen Proving Ground, Maryland, for advanced individual training.

3.  While in advanced individual training, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 20 December 1973, and remaining so absent until on or about 14 January 1974.  His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1, which was suspended for 2 months and ultimately remitted without action; forfeiture of $100.00 pay per month for 2 months; and extra duty for 30 days.  He then completed advanced individual training and was awarded military occupational specialty 63K (Quartermaster Heavy Equipment Repairman).  He was then reassigned to Fort Riley, Kansas, in March 1974 for what would be his only permanent duty station.

4.  The applicant's DD Form 214 shows, in pertinent part, that he was AWOL from 28 July 1974 through 11 August 1974, and again from 20 August 1974 through 28 August 1974.

5.  On 23 December 1974, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 27 November 1974, and remaining so absent until on or about 9 December 1974. His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1 and forfeiture of $77.00 pay per month for 1 month.

6.  The applicant's DD Form 214 also shows, in pertinent part, that the applicant was AWOL from 30 May 1975 through 1 June 1975.

7.  On 18 July 1975, the applicant was informed that charges had been preferred against him for absenting himself without authority from his unit on or about 
6 June 1975, and remaining so absent until on or about 10 July 1975; an offense punishable under the UCMJ with a punitive discharge.
8.  On 30 July 1975, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he was making his request of his own free will and had not been subjected to any coercion whatsoever by any person, and that he had been advised of the implications that were attached to it.  He further acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of the bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

9.  The applicant also stated that prior to completing his request, he had been afforded the opportunity to consult with appointed counsel for consultation, who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if found guilty.  He also acknowledged that although his legal counsel furnished him legal advice, this decision was his own.

10.  In his request for discharge, the applicant also acknowledged that he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he had been advised and understood the possible effects of an undesirable discharge, and that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now named the Department of Veterans Affairs), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit statements in his own behalf.

11.  On 7 August 1975, a mental status evaluation was conducted on the applicant, and he was cleared for any administrative action deemed appropriate by his command.

12.  On 27 August 1975, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.  On 11 September 1975, the applicant was discharged accordingly.

13.  On 22 June 1977, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

14.  In a letter, dated 12 December 1978, the applicant was informed that if his discharge was last reviewed before 31 March 1978, he had the right to request an entirely new review of his case based on newly published standards in Department of Defense Directive 1332.28 (Discharge Review Board Procedures and Standards).

15.  On 27 March 1980, the ADRB again denied the applicant's petition to upgrade his discharge, and he was informed of this decision in a letter, dated 28 April 1980.

16.  The applicant essentially stated that he was on a 30-day leave when his wife got sick, so he stayed beyond his authorized leave.  He also stated, in effect, that he got to the Army base on the 31st day, and that he was told that he was looking at a court-martial and probably some jail time, so he requested to be discharged in lieu of a court-martial.  He further stated that he was in the Army at Fort Riley from 1972 to 1975, but that he is in prison right now.  He continued by essentially stating that he does not have the document showing what kind of discharge he received, but that his discharge was for being AWOL for one day over his authorized leave.  He also stated that he heard that he could get his discharge upgraded to an honorable discharge.

17.  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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

18.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
19.  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 the Soldier’s separation specifically allows such characterization.

20.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable or general discharge.

2.  The applicant's contention that he was facing a court-martial for being 1 day late returning from a 30-day leave was considered but rejected.  The evidence of record clearly shows that charges were preferred against him for absenting himself without authority from his unit on or about 6 June 1975, and remaining so absent until on or about 10 July 1975, and that he had been AWOL on five separation occasions prior to this period of AWOL.

3.  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.

4.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  Based on the applicant's record of indiscipline, which included accepting NJP on three occasions, being AWOL on five occasions, and being charged with another period of AWOL for which he voluntarily requested discharge in lieu of a trial by court-martial, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general 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.



      _______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)                                         AR20080013109



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ABCMR Record of Proceedings (cont)                                         AR20080013109



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