IN THE CASE OF:	

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080013277 


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.

2.  The applicant states, in effect, that his undesirable discharge should be upgraded because he needs benefits for the stuff that no one wants to hear about. He was told that the curvature of the spine was an inheritance that is supposed to keep you out of the service.

3.  The applicant provides no additional documentation in support of his case.

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 record shows he enlisted in the Regular Army on 28 October 1968.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 14 November 1969, the applicant was convicted by a special court-martial of two specifications for absent without leave (AWOL) during the periods of  
14 July 1969 to 13 September 1969 and 25 September 1969 to 3 October 1969.  His punishment consisted of confinement for 5 months and forfeiture of  
$50.00 per month for 6 months.

4.  On 17 May 1971, charges were preferred against the applicant for being AWOL during the periods of 8 September 1970 to 11 September 1970;  
22 September 1970 to 10 October 1970; 13 October 1970 to 3 December  
1970; and 17 December 1970 to 3 May 1971.

5.  On 2 June 1971, 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 undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, under the provision of Army Regulation 635-200 (Personnel Separation), chapter 10, in lieu of trial by court-martial.  The applicant was not subjected to coercion with respect to his request for discharge. The applicant did not submit a statement in his own behalf

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further 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 also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  .

7.  On 3 June 1971, the applicant received a separation physical examination and was found to be in good health and qualified for separation.  His medical record contains no evidence that the applicant has a curvature of the spine.



8.  On 8 June 1971, the applicant's commander recommended that the applicant be discharged from the Army with an undesirable discharge under the provisions of Army Regulation 635-200 for the good of the service.  The commander stated that the applicant had exhibited minimal performance and his propensity for unauthorized absences would seem to justify the granting of his application for discharge in lieu of trial by court martial.

9.  On 28 June 1971, the separation authority approved the commander's recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  Accordingly, he was reduced in rank to private, E-1 and on 6 July 1971 the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 1 year, 4 months, and 13 days of Net Service This Period.  He had accrued 481 days of time lost.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 
11 February 1984.  On 10 October 1984, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable.

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 the regulation provided for the issuance of an undesirable discharge.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a medical discharge.

2.  Evidence shows the applicant had 481 days of time lost.  As such, an undesirable discharge was equitable and proper.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no evidence in the applicant’s personnel records or medical record that shows the applicant has a curvature of the spine.  Therefore, he is not entitled to an upgrade to a medical discharge.

4.  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.

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)                                         AR20080013277



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ABCMR Record of Proceedings (cont)                                         AR20080013277



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